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NOVEMBER 21, 2000

Record No. 2778-98-1

Present: Judges Bray, Frank and Senior Judge

Argued at Chesapeake, Virginia






Johnny E. Morrison, Judge


Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.

Eugene Murphy, Assistant Attorney General (Mark
L. Earley, Attorney General, on brief), for appellee.

Appellant, Modrell Antoine Williams, appeals
his conviction for possession of a firearm by a convicted felon
in violation of Code ? 18.2-308.2. For the reasons set
forth below, we reverse.


On June 14, 1998, Officer R.K. Butler received
information that someone matching appellant’s description had
"retrieve[d] a gun from some bushes." A short time
later, Butler located appellant. Appellant quickly entered a
laundromat. Butler entered and asked appellant, "’Where is
it at?’" Appellant said, "’It’s in the trash can’; and
he pointed to a small trash can."

Butler’s partner recovered a gun from the trash
can. Appellant told Butler that "the gun did not belong to
him" but that a man who had taken his money and who
appellant had been chasing had thrown it in the bushes. Because
the man allegedly took appellant’s money, appellant told Butler
"that he took the gun, thinking that he had something."
Appellant told Butler that he "thought [he] had something,
but [he] tried the trigger, and [he did not] even think it

Butler testified that the recovered gun,
Commonwealth’s Exhibit 1, was a ".38 caliber revolver,"
manufactured by "Ivan Johnson Arms." When asked to
describe its condition, Butler explained:

It’s rusty. The trigger mechanism does not seem
to make the hammer of the gun actuate. There may be a defect in
the gun. I don’t know if there is a particular way that it has to
be used to make the hammer actuate, but the trigger doesn’t
necessarily work properly; however, it was designed to propel a

In arguing his motion to strike, appellant
contended the gun was incapable of creating an explosion, was
"defective," and was inoperable. The prosecutor
contended the gun was designed to propel a missile by means of an
explosion and was, therefore, a firearm. The prosecutor also
argued that

there is always potential [for the gun to
fire]. We don’t know what it would take to make that gun an
operating gun, and it might just take a good cleaning. We don’t
know; however, what we do know is that the officer

testified that it was designed to propel a
projectile through an explosion. We also have the defendant’s
statement, his admission to the police officer, that he thought
he had something . . . .

The trial judge asked to look at the gun one
more time, after which he stated, "I’m going to deny the



The issue before us is whether the evidence was
sufficient to convict appellant for violating Code
? 18.2-308.2. In resolving that issue, we must first
determine whether the condition of a firearm possessed by a
convicted felon may affect the nature or character of the weapon
so as to exclude it as a proscribed object under the statute. In
making that determination, we analyze Code ? 18.2-308.2,
our felon-in-possession statute, and statutory and case law from
Virginia and other jurisdictions dealing with firearms.

The Law in Virginia

Code ? 18.2-308.2 makes it "unlawful
for . . . any person who has been convicted of a felony . . . to
knowingly and intentionally possess or transport any
firearm." This code section contains no definition of

In Jones v. Commonwealth, 16 Va. App.
354, 356, 429 S.E.2d 615, 616, aff’d on reh’g
en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993),
the defendant was convicted of violating Code

? 18.2-308.2 based on his possession of a
BB handgun. We looked to the legislature’s purpose in enacting
the statute and explained:

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
. . . .
Accordingly, Code ? 18.2-308.2 does not include a BB
handgun, which is a device that propels a projectile by pneumatic

Id. at 357-58, 429 S.E.2d at 617
(emphases added).

In Gregory v. Commonwealth, 28 Va. App.
393, 504 S.E.2d 886 (1998), a detective arrested Gregory, a
convicted felon, on an outstanding warrant, and "found in
Gregory’s pocket a magazine loaded with ten rounds of .22 caliber
ammunition." Id. at 397, 504 S.E.2d at 888. From
appellant’s trailer, the detective obtained "a .22 caliber
Remington Model 522 semi-automatic rifle." Id. The
magazine fit into the rifle. See id.

Gregory contended on appeal that the evidence
failed to prove the object recovered by the detective "was a
‘firearm’" under the statute. See id. at 399,
504 S.E.2d at 889. We stated, "in determining whether an
item is a ‘firearm,’ the Commonwealth must prove two discrete
elements: (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 (emphasis added). Noting that "the best
method for proving that an item is a firearm is presentation of
direct forensic evidence of the nature and operability of the
," we held that "'[c]ircumstantial evidence is
as competent and is entitled to as much weight as direct
evidence’" to prove that the item is a firearm. Id.
(emphasis added).

We affirmed the conviction and found that the
item possessed by Gregory "was designed or intended to expel
a projectile by means of a gunpowder explosion." Id.
In affirming, we reviewed the following circumstantial evidence:

Although the Commonwealth failed to explain how
the rifle operated or to present ballistics evidence, Detective
Mooney examined the weapon and testified that it was a .22
caliber, Remington Model 522 semi-automatic rifle. In his
testimony, he referred to the weapon as a "firearm."
The rifle and the loaded magazine were introduced as exhibits and
were evidence from which the jury could infer that the rifle was
designed or intended to expel projectiles by the power of
explosion of gunpowder.

Id. Significantly, there was no evidence
before the trial court that Gregory’s rifle was incapable of
expelling a projectile by an explosion.

In Redd v. Commonwealth, 29 Va. App.
256, 511 S.E.2d 436 (1999), the defendant, "a previously
convicted felon, entered a convenience store and placed a ‘long,
black gun’ on the counter." Id. at 258, 511 S.E.2d at
437. No gun was seized from Redd or produced at trial. See
id. at 260, 511 S.E.2d at 438 (Benton, J., dissenting, on
the ground that the Commonwealth failed to prove that the object
placed on counter "had the actual ability to expel a
projectile by the power of an explosion"). We affirmed the
conviction, holding:

The store clerk’s description of the object
brandished by Redd as "a long black gun" is
insufficient, alone, to prove that the object possessed the
"ability to expel a projectile by the power of an
explosion." However, Redd’s threat, upon presenting the
weapon, to kill the clerk was an implied assertion that the
object was a functioning weapon
, being in fact the firearm
that it appeared to be and possessing the power to kill. This
implied assertion, which
was corroborated by the appearance
of the object and was uncontradicted by any other evidence,
was evidence sufficient to support the trial court’s finding that
the object was a firearm

Id. at 259, 511 S.E.2d at 438 (emphases

In Jones and Gregory, we
attempted to define the term "firearm" under Code
? 18.2-308.2 in a manner that was consistent with the
legislature’s purpose for enacting the statute. In Jones,
we explained that the purpose of the statute was to keep
convicted felons "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." Jones,
16 Va. App. at 357-58, 429 S.E.2d at 617. The definition put
forth in Jones employs language from Code
? 18.2-308.2:2(G),
[1] which defines "Firearm"
as "any handgun, shotgun, or rifle which expels a projectile
by action of an explosion."

Therefore, the Commonwealth is initially
required to prove that a convicted felon possessed an actual
firearm, namely, a weapon manufactured for the purpose of
expelling a projectile by an explosion. In Jones, we
required the firearm to have the "actual capacity to cause
harm" and noted the statute’s purpose to prevent felons from
becoming "dangerously armed." Because Jones
involved a BB gun, we did not need to address the firearm’s
"actual capacity to cause harm."

In a case decided before Gregory
involving a different firearm statute, we upheld the conviction
of a defendant who, while possessing drugs, possessed a firearm
containing no clip or magazine. See Timmons v.
, 15 Va. App. 196, 198, 421 S.E.2d 894, 895
(1992) (involving Code ? 18.2-308.4, prohibiting possession
of "a controlled substance classified in Schedule I or II of
the Drug Control Act" while simultaneously possessing any
firearm). Timmons argued that the .32 caliber pistol was not a
firearm under the statute "because the absence of the clip
rendered the pistol inoperable at the time it was seized." Id.
The trial court erroneously instructed the jury that "'[a] firearm is any object which gives the appearance of having the
capability of firing a projectile
" whether or not it has
"the capability of firing a projectile.’" Id.
(emphasis added). Because the instruction allowed the jury to
convict appellant for possessing "’any object,’ whether that
object is an actual weapon or merely a toy," we held the
instruction was too broad. Id. at 199, 421 S.E.2d at 896.
However, we found such error harmless under the facts of the
case. See id. We explained:

There is no dispute that the "object"
Timmons was charged with possessing was a .32 caliber
semi-automatic pistol. In the context of this case, the jury was
not concerned with "any object" but, rather, this
particular .32 caliber pistol. Thus, although the broad language
in the instruction included "any object," the evidence
showed that the pistol in this case was, in fact, a weapon, and
not simply an unidentified object. Because there was no dispute
that the weapon was a .32 caliber semi-automatic pistol, the
objectionable language in the instruction did not affect any
issue that was in dispute and, therefore, did not affect the


Relying on Rogers v. Commonwealth, 14
Va. App. 774, 418 S.E.2d 727 (1992), we explained in Timmons:

[A] weapon is not excluded from the operation
of the statute simply because it is missing a part at the time it
is seized. In Rogers, we had occasion to consider whether
a weapon, which had no firing pin when discovered and, thus,
"could not be fired as found," was nonetheless a
"sawed off shotgun" as that term is defined in the
"Sawed-Off" Shotgun Act (Code ?? 18.2-299 –
18.2-307). The appellant in Rogers asserted that his
conviction for possession of a sawed-off shotgun should be
reversed because the absence of a firing pin made the weapon
inoperable. In holding that "the absence of a firing pin in
such a weapon does not exempt it from prohibition under the
Act," we recognized that the weapon would have become
completely operable "after a moment’s delay to insert a
firing pin." We stated that holding otherwise "’would
permit criminals to carry [weapons] in the first stage of
disassembly, ready to be reassembled on a moment’s notice.’
Alternatively, a criminal carrying [such a weapon] would be
allowed to rendezvous with a confederate carrying the firing pin,
thereby avoiding the application of the Act."

We find the reasoning in Rogers
persuasive. A clip, like a firing pin, can be inserted
"on a moment’s notice" so as to make the weapon
. To hold that a weapon merely missing a clip falls
outside the scope of the statute would be tantamount to holding
that criminals may carry weapons while possessing controlled
substances, so long as the weapon is missing one part that could
be quickly inserted "on a moment’s notice." As in Rogers,
we believe that this would produce a result unintended by the
legislature. Therefore, Timmons’ contention that a weapon must be
operable when discovered in order to fall within the purview of
Code ? 18.2-308.4 is without merit.

15 Va. App. at 200-01, 421 S.E.2d at 897
(emphasis added).

In Rogers, the evidence established that

[t]he weapon had no firing pin when discovered,
and therefore could not be fired as found. Additionally, no
firing pin was recovered from appellant. However, the weapon
could be made to fire by inserting a small nail or pin. No
specific expertise would be required to insert such a pin

14 Va. App. at 776, 418 S.E.2d at 728 (emphasis

Except for the absence of the clip in Timmons
and the absence of the firing pin in Rogers, conditions
that could quickly and easily be remedied, there was no evidence
that the weapons would not operate after the missing magazine or
firing pin was inserted.

In Jones and Gregory, we set
forth the purpose of the statute and explained the elements that
the Commonwealth must prove. See Gregory, 28 Va.
App. at 399, 504 S.E.2d at 889 (Commonwealth must prove that
weapon was designed or intended to expel projectiles by explosion
and that it is capable of doing so); Jones, 16 Va. App. at
357, 429 S.E.2d at 617 (Code

? 18.2-308.2 prohibits felons from
possessing device that has actual capacity to do serious harm).



In explaining our analysis, we feel it
important to distinguish cases like this one, where the object is
recovered, produced at trial and proven to be an actual firearm,
from cases in which no object is recovered and produced at trial.
Cf. Redd, 29 Va. App. at 260, 511 S.E.2d at 438
(because no object was recovered or produced, Commonwealth was
required to use circumstantial evidence to establish whether
object was actual firearm). Therefore, the following analysis is
limited to establishing whether an actual firearm is operational
or can be readily made operational.


Here, the Commonwealth’s evidence established
that appellant possessed an actual firearm designed for the
intended purpose of expelling a projectile by an explosion. The
Commonwealth’s evidence also established that the firearm was in
disrepair and that neither the hammer nor the trigger of the
firearm was operational. The Commonwealth presented no evidence
explaining why the gun did not operate or what repairs, if any,
could or would make the firearm operational.

Because the statute is intended to prevent harm
from convicted felons who become dangerously armed, we hold that
the statute prohibits felons from possessing actual firearms that
are presently operational or that can readily or easily be made
operational or capable of being fired with minimal effort and
expertise. To that end, we agree with the reasoning used in Timmons
and Rogers that a weapon does not cease to be a firearm
merely because it has no present or immediate capacity to fire a
projectile. In those cases, which dealt with other firearm
statutes, the absence of a firing pin or a loaded magazine were
deemed deficiencies that could easily and readily be corrected.
To hold that an object in such condition is not a firearm having
the capacity to cause harm would allow convicted felons to
possess a temporarily disabled or unloaded firearm that could
quickly be made dangerous. Such a result would thwart the
statute’s purpose. See State v. Anderson, 971 P.2d
585, 591 (Wash. Ct. App. 1999) ("It begs reason to assume
that our Legislature intended to allow convicted felons to
possess firearms so long as they are unloaded, or so long as they
are temporarily in disrepair, or so long as they are temporarily
disassembled, or so long as they are not immediately

Sufficiency of the Evidence

Under the above definition, the Commonwealth is
required to prove that the accused possessed an actual firearm
that is, or can readily be made, operational. Thus, 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. See Jones, 16 Va.
App. at 357-58, 429 S.E.2d at 617. It then must prove that the
firearm is operational or can readily be made operational. Direct
evidence that the police test-fired the firearm would provide the
best proof of the firearm’s operability; however,
"[c]ircumstantial evidence is as competent and is entitled
to as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307
S.E.2d 864, 876 (1983); cf. Byers v. Commonwealth,
23 Va. App. 146, 150-51, 474 S.E.2d 852, 854 (1996) (explaining
that proof of "actual" possession of a firearm under
Code ? 18.2-53.1 may be established by circumstantial evidence,
direct evidence, or both); see also Commonwealth v.
, 307 A.2d 843, 844 (Pa. 1973) (fact finder may infer
operability from object that looks like, feels like, sounds like
or is like, a firearm; such an inference would be reasonable
without direct proof of operability).

Some circumstances that can establish that an
actual firearm is operational or can readily be made operational
include: whether the object was loaded with bullets; whether any
implied assertions or threats were made as to the weapon’s
ability to cause injury; whether the accused possessed
ammunition, magazines or other parts or pieces suggesting that
the firearm was capable of firing or could readily be made
capable of firing; and proper testimony explaining what minor
steps could make the firearm operational.

Here, the Commonwealth’s evidence established
that appellant possessed an actual firearm, although rusty and
inoperable. Nevertheless, the Commonwealth offered no evidence
that the weapon could be readily rendered functional.
Thus, the Commonwealth proved only that appellant possessed an
inoperable firearm, clearly insufficient proof that the weapon
was one proscribed by Code ? 18.2-308.2. Accordingly,
appellant’s conviction is reversed, and the indictment is

Reversed and dismissed.


[1] Code ? 18.2-308.2:2
requires firearm dealers and purchasers to supply information for
criminal history record information checks.

[2] That definition comports with the
following definition of a "firearm" from Black’s Law
648 (7th ed. 1999): "A weapon that expels a
projectile (such as a bullet or pellets) by the combustion of
gunpowder or other explosive."

[3] This list of circumstances is not exclusive.

[4] The prosecutor’s speculative oral argument that the
firearm might need only a "good cleaning" was not