Baker v. Commonwealth

PRESENT: All the Justices

JONTREIL LAMAR BAKER
OPINION BY
v. Record No. 120252 JUSTICE LEROY F. MILLETTE, JR.
November 1, 2012
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether evidence of the

possession of one firearm on three separate occasions can

constitute three separate charges for possession of a firearm

by a convicted felon in violation of Code § 18.2-308.2(A).

I. Background

Jontreil Lamar Baker, a convicted felon, and Calvin

Williams visited Charna Chapman in the home that she shared

with a roommate in Suffolk. During their visit, Chapman showed

Baker her Hi-Point Firearms .380 caliber pistol. Baker offered

to purchase the firearm, but Chapman refused to sell.

The next day, Chapman and her roommate returned home to

find that the door they had locked just hours before was now

easily pushed open. The home had been burglarized and

Chapman's firearm was missing. While they were away, Baker had

entered the home through a window, taken the firearm, and left

out of the front door. When Williams picked him up a block

away from the home just minutes after the burglary, Baker

displayed the firearm as he entered the car.
 Several weeks later, Baker showed Marvin Donnell McKinney

a Hi-Point .380 caliber pistol, which he offered to sell.

After noting his interest, McKinney contacted Detective William

N. Shockley of the City of Suffolk Police Department to inform

him of the offer. Detective Shockley and McKinney organized a

"controlled purchase" of the firearm to occur the following

day. Detective Shockley observed McKinney meet with Baker and

receive a Hi-Point .380 caliber pistol in exchange for $225.

The firearm was later confirmed to be Chapman's missing

firearm.

Baker was arrested and tried in the Circuit Court of the

City of Suffolk. He was convicted of three counts of

possession of a firearm by a convicted felon in violation of

Code § 18.2-308.2(A). * Baker sought review in the Court of

Appeals, where he argued that the trial court erred in

convicting him of three counts of possession of a firearm by a

convicted felon because he should have been convicted of only

one continuous possession.

The Court of Appeals disagreed with Baker, holding that

" 'the number of occasions' appropriately delineates the unit

*
Baker was also convicted of statutory burglary in
violation of Code §§ 18.2-90 and 18.2-91, grand larceny of a
firearm in violation of Code § 18.2-95, and conspiracy to
commit statutory burglary and/or grand larceny of a firearm in
violation of Code § 18.2-22. On appeal, Baker does not
challenge these three convictions.

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of prosecution constituting one offense of 'possession' under

Code § 18.2-308.2." Baker v. Commonwealth, 59 Va. App. 146,

153, 717 S.E.2d 442, 445 (2011) (quoting Brown v. Commonwealth,

Record No. 1438-00-1 (June 12, 2001)). The Court of Appeals

upheld all three possession convictions, holding that an

"occasion" is defined as a "particular occurrence" or a

"particular time," and that each of the convictions was based

on "distinguishable incidents." Id. at 152-54, 717 S.E.2d at

445-46.

II. Analysis

Baker contends that the Court of Appeals erred in

affirming his three convictions for possession of a firearm by

a convicted felon under Code § 18.2-308.2(A) because the

conduct charged should have constituted one continuous

possession. He claims that the use of the concept of separate

"occasions" as the relevant unit of prosecution fails to

describe what length or duration of possession is sufficient to

constitute a separate offense. Baker argues that under this

ambiguous standard, a felon who comes into possession of a

firearm, takes it home, and places it in a safe for a year

could be convicted of 365 separate violations of Code § 18.2-

308.2(A).

According to the Commonwealth, each separate and distinct

occasion would constitute a separate possession under Code

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§ 18.2-308.2(A), thereby justifying three separate convictions

of Baker under the statute. In response to Baker's contention

that such a finding could lead to 365 convictions for a year of

continuous possession of a firearm in a locked safe, the

Commonwealth points out that such a situation could not occur

because separate and distinct occasions of possession must be

proven by the Commonwealth for each individual conviction. The

Commonwealth contends that if a firearm remained untouched in a

safe for 365 days, nothing separate or distinct would occur to

establish a new occasion under the statute. Nor would there be

evidence to prove possession on each of the 365 days of that

year. We agree with the Commonwealth that the three

convictions should be affirmed as each is a separate and

distinct act or occurrence of possession, however, we reject as

unclear the term "unit of prosecution" previously employed by

the Court of Appeals.

In this issue of statutory construction, we conduct a de

novo review. Kozmina v. Commonwealth, 281 Va. 347, 349, 706

S.E.2d 860, 862 (2011). Code § 18.2-308.2(A) provides, in

pertinent part, "[i]t shall be unlawful for . . . any person

who has been convicted of a felony . . . to knowingly and

intentionally possess or transport any firearm . . . or to

knowingly and intentionally carry about his person, hidden from

common observation, any weapon described in subsection A of

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§ 18.2-308." In interpreting this statute, "courts apply the

plain meaning . . . unless the terms are ambiguous or applying

the plain language would lead to an absurd result." Boynton v.

Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006). A

statute is considered ambiguous "if the text can be understood

in more than one way or refers to two or more things

simultaneously or when the language is difficult to comprehend,

is of doubtful import, or lacks clearness or definiteness."

Id. at 227 n.8, 623 S.E.2d at 926 n.8 (citations, internal

quotation marks, and alteration omitted). This statute, Code

§ 18.2-308.2(A), lacks definition and is therefore ambiguous as

to whether possession of a single firearm on different dates or

at different times constitutes one continuous offense or

multiple offenses.

Since we find the statute ambiguous as to when one offense

ends and the next begins, we join the Court of Appeals of

Virginia and the appellate courts of many other jurisdictions

in using the gravamen of the offense to determine the

legislature's intent. See, e.g., Acey v. Commonwealth, 29 Va.

App. 240, 249-50, 511 S.E.2d 429, 433-34 (1999) (finding

simultaneous possession of multiple firearms does not justify

multiple convictions for possession because the possession of a

firearm by a felon is, of itself, the dangerousness that is the

gravamen of the offense of possession); United States v. Evans,

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854 F.2d 56, 60 (5th Cir. 1988) (determining that the making of

a false statement, not the acquisition of the firearm, was the

gravamen of the offense of the crime of furnishing false

identification made in connection with the purchase of firearms

and ammunition); Bautista v. State, 863 So. 2d 1180, 1186-87

(Fla. 2003) (finding the gravamen of the offense of DUI

manslaughter to be the killing of a human being rather than a

traffic violation).

In creating this statutory offense, 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 firearm. This is

evidenced by the language of Code § 18.2-308.2(A), which, along

with possession of a firearm, includes specific prohibitions

against the distinct acts of transporting a firearm and

"carry[ing] about [the felon's] person, hidden from common

observation, any weapon" named in the statute. We have held

that "every part of a statute is presumed to have some effect

and no part will be considered meaningless unless absolutely

necessary." Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340,

497 S.E.2d 335, 338 (1998). We therefore find that the

inclusion of these specific references expresses the General

Assembly's intent that separate instances of possession, and

therefore of heightened danger to the community, be punished

6
separately. If the statute was meant to restrict the offense

only to the receipt, initial possession, or even extended

possession of the weapon, such a specific reference to the

transporting or carrying of that weapon would be a frivolous

and unnecessary addition to the statutory language. The

implicit danger in each separate instance of possession was

also noted by the Court in Armstrong v. Commonwealth, 263 Va.

573, 582-83, 562 S.E.2d 139, 144 (2002), where we found a felon

"unfit to possess firearms," making each possession of a

firearm by a felon, whether for a lawful or unlawful purpose,

the conduct the General Assembly intended to curtail.

The General Assembly's goal in punishing a convicted felon

for possessing or transporting a firearm is therefore not

limited to preventing a felon's receipt or initial possession

of a firearm, but extends to the prevention of the heightened

danger each new instance of possession creates. In light of

the legislative intent behind this provision, each separate

incident of possession of a firearm by a convicted felon proven

by the Commonwealth establishes a new offense because each

incident is sufficient to create a new danger to members of the

community exposed to the armed felon.

This is a position similar to those taken by other

jurisdictions with regards to the distinction between separate

offenses of possession, and it is consistent with the harm that

7
the General Assembly intended to address with this statute.

See United States v. Jones, 841 F.2d 1022, 1024 (10th Cir.

1988) (finding no division between unlawful receipt and

unlawful possession of a firearm because no new date or

specific act or transaction was proven by the government);

Melton v. State, 842 A.2d 743, 757 (Md. 2004) (holding that

only a single conviction was justified when the defendant

committed only one act of possession but was a member of more

than one of the nine listed classes prohibited from possessing

the firearm); State v. Johnson, No. 52370-8-I, 2004 Wash. App.

LEXIS 1132, at *8-11 (Wash. Ct. App. June 1, 2004)

(unpublished) (explaining that "any firearm" in the possession

statute indicated an intention that each "separate instance of

unlawful possession . . . constitute a violation").

In accordance with the gravamen of the offense, we hold

that a new offense of possession can be established with each

separate act or occurrence that can be proven by the

government. Under this analysis, each of the three convictions

under Code § 18.2-308.2(A) derive from distinct offenses. The

first conviction was based on the possession of the firearm the

day it was stolen, supported by evidence of the burglary and

Williams' testimony that the firearm was displayed to him by

Baker on the same day. The second conviction was based on the

possession of the same firearm several weeks later, supported

8
by evidence of Baker's attempt to sell the firearm to McKinney.

The final conviction was for the possession, display, and sale

of the firearm by Baker the following day, which was observed

by Detective Shockley and testified to by the recipient of the

firearm. These incidents constitute distinct acts or

occurrences, each reflecting an enhanced danger to the public,

and convictions for the three separate charges on the facts of

this case are therefore valid under Code § 18.2-308.2(A).

III. Conclusion

For the foregoing reasons, we hold that the Court of

Appeals did not err in affirming the three convictions under

Code § 18.2-308.2(A) for separate acts or occurrences as proven

by the Commonwealth. We will affirm the judgment of the Court

of Appeals.

Affirmed.

JUSTICE POWELL, dissenting.

In my opinion, the majority fails to apply a crucial rule

of statutory construction applicable to unit of prosecution

cases such as this one. In so doing, the majority ignores the

necessary application of the rule of lenity requiring that we

construe an ambiguous statute in a criminal defendant’s favor.

Therefore, I must respectfully dissent.

As the majority correctly notes, Code § 18.2-308.2(A) is

ambiguous as to what the proper unit of prosecution is under

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the statute. Code § 18.2-308.2(A) does not indicate

unambiguously whether the General Assembly intended to create a

separate offense for each “occasion” on which a felon possesses

a firearm during a certain period of time. To resolve the

ambiguity, we must look to the General Assembly’s intent in

enacting the statute.

In attempting to ascertain the General Assembly’s intent,

the majority is correct that we must look to the gravamen of

the offense. However, we must also be mindful of the fact that

“[w]hen a penal statute is unclear, the statute must be

strictly construed against the Commonwealth and in favor of an

accused’s liberty, and the accused is entitled to the benefit

of any reasonable doubt concerning the statute's construction.”

Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825

(1998) (emphasis added). Indeed, we have previously recognized

that, before the accused can be punished, “‘his case must be

plainly and unmistakably within the statute.’” Harward v.

Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985)

(quoting United States v. Lacher, 134 U.S. 624, 628 (1890)).

The United State Supreme Court has provided guidelines for

the proper application of such a rule of lenity:

When Congress has the will it has no difficulty in
expressing it – when it has the will, that is, of
defining what it desires to make the unit of
prosecution and, more particularly, to make each
stick in a faggot a single criminal unit. When

10
 Congress leaves to the Judiciary the task of imputing
to Congress an undeclared will, the ambiguity should
be resolved in favor of lenity. And this not out of
any sentimental consideration, or for want of
sympathy with the purpose of Congress in proscribing
evil or antisocial conduct. It may fairly be said to
be a presupposition of our law to resolve doubts in
the enforcement of a penal code against the
imposition of a harsher punishment. This in no wise
implies that language used in criminal statutes
should not be read with the saving grace of common
sense with which other enactments, not cast in
technical language, are to be read. Nor does it
assume that offenders against the law carefully read
the penal code before they embark on crime. It
merely means that if Congress does not fix the
punishment for a federal offense clearly and without
ambiguity, doubt will be resolved against turning a
single transaction into multiple offenses . . . .

Bell v. United States, 349 U.S. 81, 83-84 (1955) (emphasis

added).

In the present case, it is undisputed that the “gravamen

of the offense” under Code § 18.2-308.2 is “the possession of a

firearm by a felon.” Acey v. Commonwealth, 29 Va. App. 240,

250, 511 S.E.2d 429, 433-34 (1999) (emphasis added).

Furthermore, it has been recognized that “[p]ossession is by

nature a continuing offense.” Jordan v. Virginia, 653 F.2d

870, 875 (4th Cir. 1980); see also Morris v. Commonwealth, 51

Va. App. 459, 467, 658 S.E.2d 708, 712 (2008). “A continuing

offense is a continuous, unlawful act or series of acts set on

foot by a single impulse and operated by an unintermittent

force, however long a time it may occupy.” United States v.

11
Midstate Horticultural Co., 306 U.S. 161, 166 (1939) (internal

quotation marks omitted).

It has been recognized that

cases involving multiple convictions under a single
statutory provision. . . . are often referred to as
“unit of prosecution” cases, as they consider whether
the conduct at issue was intended to give rise to
more than one offense under the same provision.

United States v. McLaughlin, 164 F.3d 1, 14 (D.C. Cir. 1998)

(emphasis added). The present case is clearly a unit of

prosecution case as it only involves a single statute: Code

§ 18.2-308.2(A). In applying the rule of lenity espoused in

Bell to a unit of prosecution case involving a continuous

offense, such as possession, appellate courts have

overwhelmingly held that a continuous offense can only be

charged as a single offense. See United States v. Ellis, 622

F.3d 784, 793 (7th Cir. 2010); United States v. Hope, 545 F.3d

293, 296 (5th Cir. 2008); United States v. Finley, 245 F.3d

199, 208 (2d Cir. 2001); United States v. Rivera, 77 F.3d 1348,

1351 (11th Cir. 1996); United States v. Horodner, 993 F.2d 191,

193 (9th Cir. 1993); United States v. Jones, 841 F.2d 1022,

1023 (10th Cir. 1988), (recognizing that “ambiguity in the

definition of conduct to be punished must be settled against

turning a single transaction into multiple offenses”).

I am particularly persuaded by the United States Court of

Appeals for the Sixth Circuit’s decision in United States v.

12
Jones, 533 F.2d 1387 (6th Cir. 1976). The facts of Jones are

markedly similar to the present case as both cases involve a

convicted felon who was observed to have possession of the same

firearm on three separate occasions over a three year period

which ultimately resulted in three convictions for possession

of a firearm by a convicted felon. Id. at 1389-90. In

reversing two of the convictions, the Sixth Circuit explained:

It is true that in the case at bar the Government is
claiming that Jones possessed the pistol on three
separate occasions, not that continuous possession
existed which has been broken down into arbitrary
time period[s]. With equal propriety the Government
might have charged Jones with possession on more than
1100 separate days and obtained convictions to
imprison Jones for the rest of his life. The fact
that the Government merely has proof that he
possessed the same weapon on three separate
occasions, rather than continuously for a three-year
period, should not dictate the result that Jones
could receive three times the punishment he would
face if continuous possession for a three-year period
were proved. There is no proof that there was any
interruption in the possession by Jones of the
weapon.

Id. at 1391 (emphasis added). The majority in this case,

however, would require a different result.

I am also not persuaded by the majority’s reliance on the

General Assembly’s inclusion of “specific prohibitions.” The

plain language of Code § 18.2-308.2(A) prohibits a convicted

felon from

knowingly and intentionally possess[ing] or
transport[ing] any firearm or ammunition for a
firearm, any stun weapon as defined by § 18.2-308.1,

13
 or any explosive material, or . . . knowingly and
intentionally carry[ing] about his person, hidden
from common observation, any weapon described in
subsection A of § 18.2-308.

(Emphasis added.)

In making its argument, the majority fails to recognize

the significance of the disjunctive “or” that immediately

proceeds the “specific prohibitions” upon which it relies as

well as the subsequent change in verbiage regarding the

prohibited acts. As evidenced by the use of the word “or,”

possessing a firearm can be distinguished from carrying a

concealed weapon. While every weapon that is concealed is

possessed, not every weapon possessed is concealed. Indeed, it

is worth noting that the “specific prohibitions” set forth in

Code § 18.2-308.2(A) do not prohibit a convicted felon from

possessing many of the weapons delineated (firearms being the

obvious exception); rather, that portion of the statute only

prohibits a convicted felon from carrying and concealing those

weapons about his person. Thus, had Baker been charged with

carrying a concealed firearm on each of the three occasions,

only then would the specific prohibitions be applicable.

Moreover, the presence of this change in verbiage clearly

demonstrates the General Assembly’s ability to distinguish a

distinct unit of prosecution where it elects to do so. In the

absence of such an election by the General Assembly, the

14
statute is clearly ambiguous and our jurisprudence requires

that we apply the rule of lenity. See Waldrop, 255 Va. at 214,

495 S.E.2d at 825. In my opinion, the proper course of action

is to follow the guidelines established in Bell. Such

application would necessarily require this Court to hold that

the General Assembly only intended to punish as a single

offense all acts of dominion demonstrating uninterrupted

possession of the firearm. If the General Assembly had

intended to punish each time a felon is witnessed to be in

possession of a firearm, as the majority suggests, it could

have done so by forbidding each act of dominion instead of the

entire course of conduct.

It is further worth noting that the majority’s stated

holding necessitates reversal in the present case. The

majority specifically holds that “a new offense of possession

can be established with each separate act or occurrence that

can be proven by the government.” However, as previously

discussed, possession is a continuing offense. Therefore, it

is axiomatic that, in order for there to be a separate act or

occurrence of possession, there must be some form of

interruption in the initial act or occurrence of possession.

See, e.g., Rivera, 77 F.3d at 1351 (“Where there is no proof

that possession of the same weapon is interrupted, the

Government may not arbitrarily carve a possession into separate

15
offenses”); United States v. Conley, 291 F.3d 464, 470 (7th

Cir. 2002) (“a felon may be charged and convicted of two counts

of possessing the same firearm only if: (1) he possesses the

weapon; (2) he is aware that his possession of the weapon has

been interrupted; and (3) he thereafter reacquires possession

of the weapon himself.”). In other words, the defendant must

have been dispossessed of the firearm before there can be a

separate act or occurrence of possession. As there is no

evidence of Baker being dispossessed of the firearm, there is

only a single act or occurrence of possession.

For all the foregoing reasons, I cannot join in the

majority’s opinion. Rather, I would hold that a proper

application of the rule of lenity demonstrates that the

evidence in the present case only supports one conviction for

Baker’s continuous possession of the firearm. Accordingly, I

would reverse the decision of the Court of Appeals, affirm the

trial court as to one count of possession of a firearm by a

convicted felon and dismiss the remaining two counts of

possession of a firearm by a convicted felon.

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