Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
and Agee, JJ., and Lacy, S.J.1
JOSEPH H. HARRIS, JR.
v. Record No. 061719 OPINION BY JUSTICE CYNTHIA D. KINSER
September 14, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Joseph H. Harris, Jr. was convicted of possessing a
concealed weapon, specifically a box cutter, after having
been convicted of a felony, in violation of Code § 18.2-
308.2(A). Because the box cutter concealed by Harris is
not a weapon described in Code § 18.2-308(A), the evidence
to sustain his conviction was insufficient as a matter of
law. We will therefore reverse the judgment of the Court
of Appeals of Virginia and vacate Harris’ conviction.
Douglas Otmers, a deputy with the Southampton County
Sheriff’s Office, arrested Harris for public intoxication
and conducted a search of Harris’ person incident to the
arrest.2 During the search, Deputy Otmers found what he
referred to as a “box cutter” in the front left pocket of
Harris’ pants. Deputy Otmers subsequently learned that
Harris had several prior felony convictions. A grand jury
1
Justice Lacy participated in the hearing and decision
of this case prior to the effective date of her retirement
on August 16, 2007.
2
Harris does not challenge the legality of either his
arrest or the search incident to the arrest.
indicted Harris for possession of a concealed weapon by a
felon in violation of Code § 18.2-308.2(A).
At Harris’ bench trial in the Circuit Court of
Southampton County, Deputy Otmers testified that the box
cutter contained two razor blades. The razor blade located
in the front portion of a gray metal handle could be
extended and retracted by manipulating a lever on the
handle. The other razor blade was stored inside the
handle.
Yvonne Ellis, Harris’ sister, testified that Harris
performs utility, carpentry, and brick masonry work. Ellis
further stated that the box cutter in question belonged to
her and that Harris had used the tool to install carpet in
her living room on the evening of his arrest for public
intoxication.
Harris testified that, while serving time in the
penitentiary, he became a skilled tradesman in performing,
among other things, floor-covering work. Harris stated
that a box cutter is one of the tools he learned to use and
admitted that he was carrying the box cutter in question
because he had been installing carpet at his sister’s home.
According to Harris, he forgot that he had the box cutter
in his pocket. He also acknowledged that he understood, as
2
a convicted felon, he could not legally possess a concealed
weapon.
At the close of all the evidence, Harris argued, among
other things, that the box cutter in question was not a
weapon, but a tool of his trade, and that he was therefore
not guilty of carrying a concealed weapon. The circuit
court concluded that the implement Harris was carrying is
commonly known as a box cutter. Relying on the decision in
O’Banion v. Commonwealth, 33 Va. App. 47, 59, 531 S.E.2d
599, 605 (2000) (holding that a box cutter is “a weapon
within the proscriptive reach of Code § 18.2-308.2”), the
circuit court further concluded that carrying a box cutter
concealed after having been convicted of a felony violates
Code § 18.2-308.2(A) and thus found Harris guilty of the
charged offense.
In an unpublished order, the Court of Appeals of
Virginia cited O’Banion and denied Harris’ petition for
appeal, holding that the evidence proved that Harris
carried a box cutter, which is “a forbidden weapon under
Code § 18.2-308(A).” Harris v. Commonwealth, Record No.
2661-05-1, slip op. at 3 (April 20, 2006). For the reasons
stated in the April 20, 2006 order, a three-judge panel of
the Court of Appeals also denied the petition for appeal.
3
Harris v. Commonwealth, Record No. 2661-05-1 (July 21,
2006). Harris then appealed to this Court.
The provisions of Code § 18.2-308.2(A) make it
unlawful for any person who has been convicted of a felony
“to knowingly and intentionally carry about his person,
hidden from common observation, any weapon described in
subsection A of [Code] § 18.2-308.” As relevant to this
appeal, the weapons described in Code § 18.2-308(A) include
“any dirk, bowie knife, switchblade knife, ballistic knife,
machete, razor, slingshot, spring stick, metal knucks, or
blackjack; . . . or . . . any weapon of like kind as those
enumerated in this subsection.” The dispositive question
in this appeal is whether the subject box cutter is one of
the specifically proscribed items, and if not, whether it
is nevertheless a “weapon of like kind.” Code § 18.2-
308(A). Because this question requires construction of a
statute, it is a question of law, which we review de novo
on appeal. Farrakhan v. Commonwealth, 273 Va. 177, 180,
639 S.E.2d 227, 229 (2007).
In Farrakhan, we set forth the analytical framework
for deciding whether an item falls within the reach of Code
§ 18.2-308(A):
If the . . . item in question meets the
definition of an enumerated item within Code
§ 18.2-308(A), the evidence is clearly sufficient
4
for a conviction under the statute. Additionally,
if the . . . item is not enumerated, concealment of
the item may be proscribed by Code § 18.2-308(A) if
it is a “weapon of like kind.” However, before
examination of similar physical characteristics to
enumerated items, the item in question must first
be a “weapon.”
. . . .
. . . Upon establishing that the item in
question is a “weapon,” the analysis continues to
determine if the item possesses such similar
characteristics to the enumerated items in the
Code § 18.2-308(A) such that its concealment is
prohibited.
Id. at 182, 639 S.E.2d at 230.
Relying on the decision of the Court of Appeals in
O’Banion, the Commonwealth contends that the subject box
cutter qualifies as one of the enumerated items in Code
§ 18.2-308(A), i.e., a razor. In O’Banion, the defendant,
like Harris, was carrying concealed a box cutter described
as “a cutting instrument that holds a razor blade.” 33 Va.
App. at 59, 531 S.E.2d at 605. Employing the dictionary
definition of the term “razor,”3 the Court of Appeals
concluded that, “by incorporating a razor blade, the box[]
cutter combine[d] the fine-edged sharpness of a straight
3
That definition states that a “razor” is “ ‘a keen-
edged cutting instrument made with the cutting blade and
handle in one (as a straight razor) or with the cutting
blade inserted into a holder (as a safety razor or electric
razor) and used chiefly for shaving or cutting the hair.’ ”
O’Banion, 33 Va. App. at 60, 531 S.E.2d at 605 (quoting
Webster’s Third New International Dictionary 1888 (1981)).
5
razor with the retracting capacity of a locked-blade
knife.” Id. at 60, 531 S.E.2d at 605. The Court of
Appeals held that “[t]hose characteristics bring the
box[]cutter squarely within the definitio[n] of “razor”
under Code [§] 18.2-308(A).” Id. The Commonwealth urges
this Court to follow the rationale of O’Banion and find
that the evidence was sufficient to sustain Harris’
conviction. We do not agree with the Commonwealth’s
position.
The current dictionary definition of the term “razor”
refers to both a straight razor and a safety razor. See
supra note 3 and accompanying text. A box cutter is
neither; it is defined as “a small cutting tool that is
designed for opening cardboard boxes and typically consists
of a retractable razor blade in a thin metal sheath.”
Merriam-Webster’s Collegiate Dictionary 148 (11th ed.
2004). Furthermore, when a razor was added to the list of
items that could not lawfully be carried concealed, see
1884 Acts ch. 143, the term “razor” was defined as “a knife
with a keen edge and broad back, used for shaving.” A
Dictionary of the English Language 828 (1885); see also A
Dictionary of the English Language 1187 (1880) (defining
the term “razor” as “[a] knife or instrument for shaving
off beard or hair”).
6
Because we must strictly construe penal statutes, see
Farrakhan, 273 Va. at 182, 639 S.E.2d at 230, we hold the
subject box cutter is not a razor within the meaning of
Code § 18.2-308(A). See In re Michael R., 16 Cal. Rptr.
3d 291, 292–93 (Cal. Ct. App. 2004) (holding that a box
cutter did not constitute a “razor with an unguarded blade”
and was therefore not a weapon under the California statute
at issue). Merely because a box cutter contains a sharp-
edged, razor-type blade that is retractable does not mean
that a box cutter meets the definition of the item “razor”
enumerated in Code § 18.2-308(A). To the extent that the
decision in O’Banion is inconsistent with this holding, it
is overruled.
The analysis, however, does not end at this juncture.
As we explained in Farrakhan, even if an item is not one of
the items enumerated in Code § 18.2-308(A), concealment of
the item may still be prohibited if it is a “weapon of like
kind.” Code § 18.2-308(A). The item must first be a
“weapon.” If it is not, the analysis ends, and it is not
necessary to compare the item’s characteristics to those of
the enumerated items to decide if it is “of like kind.”
In Farrakhan, we held “that in order to be a ‘weapon’
within the definition of ‘weapon of like kind,’ the item
must be designed for fighting purposes or commonly
7
understood to be a ‘weapon.’” 273 Va. at 182, 639 S.E.2d
at 230. Like the kitchen knife at issue in that case, the
box cutter that Harris was carrying concealed was not
designed for fighting purposes. Nor can we say that a box
cutter is commonly understood to be a weapon. As reflected
by its dictionary definition, a box cutter is designed to
open cardboard boxes. Therefore, we hold that the subject
box cutter is not a “ ‘weapon’ within the definition of
‘weapon of like kind.’ ” Id.; see also Holley v. State,
877 So.2d 893, 896 (Fla. Dist. Ct. App. 2004) (holding that
a box cutter is not a “deadly weapon” under the Florida
statute at issue).
We are keenly aware that a box cutter is a potentially
dangerous instrumentality and has, in fact, been used as
such in the past. It is, however, the role of the General
Assembly, not this Court, to craft any needed revisions to
Code § 18.2-308(A) and to decide what items to include
within the statute’s proscription. We are required to
construe Code § 18.2-308(A) strictly against the
Commonwealth and to confine the statute to those offenses
clearly proscribed by its plain terms. See Harward v.
Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985)
(penal statutes “cannot be extended by implication but must
be confined to those offenses proscribed by the language
8
employed”). Harris, like any defendant, “is entitled to
the benefit of any reasonable doubt about the construction
of a penal statute.” Martin v. Commonwealth, 224 Va. 298,
300–01, 295 S.E.2d 890, 892 (1982).
For these reasons, we conclude that the evidence was
insufficient as a matter of law to sustain Harris’
conviction for carrying a concealed weapon after having
been convicted of a felony. We will therefore reverse the
judgment of the Court of Appeals and vacate Harris’
conviction.4
Reversed.
4
In light of our decision, it is not necessary to
address Harris’ other assignments of error.
9