No double jeopardy in felon’s gun case

Defendant’s guarantee against double jeopardy is not violated by a second prosecution for being a violent felon in possession of a firearm because the act underlying this prosecution is different than the acts for which he was convicted in his first prosecution.

In the first prosecution, defendant had multiple weapons at his residence on Jan. 17, 2017, and fired one of them near his then-girlfriend. In the current prosecution, defendant is accused of firing multiple rounds from his back porch in the early morning hours of Jan. 1, 2017.

Defendant has moved to dismiss the current prosecution on double jeopardy grounds. He argues that the weapon he possessed in the Jan. 1 incident is one of the same weapons he possessed during the Jan.15 incident that resulted in his conviction.

This argument is foreclosed by Baker v. Commonwealth, 284 Va. 572 (2012). In Baker, the defendant received three separate convictions for being a felon in possession of a firearm. The defendant displayed a firearm on one day, offered to sell the same firearm to a different individual several weeks later and then subsequently sold the firearm.

The Virginia Supreme Court rejected his argument that because the same weapon was involved in each incident, he “should have been convicted of only one continuous possession.”

The court explained that in enacting Code § 18.2-308.2, 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 weapon. … The court found that the General Assembly intended that ‘separate instances of possession, and therefore of heightened danger to the community, be punished separately.’”

Thus, the commonwealth can prosecute defendant for multiple violations “even if all the violations involve the same firearm or firearms, so long as it establishes separate incidences of possession that each ‘create a new danger to members of community exposed to the armed felon.’”

The commonwealth’s evidence establishes separate acts of possession, which created a “new danger” to the public, underlying each prosecution.

Double jeopardy does not bar the current prosecution. Defendant’s motion to dismiss on double jeopardy grounds is overruled.

Commonwealth v. Varona, Case No. CL19-412. Jan. 27, 2020; Norfolk City Cir. Ct. (Hall) Katherine M. Beye, Daniel P. McNamara for the parties. VLW 020-8-048, 3 pp.