Present: All the Justices
LAFATE KINGSBUR, III
v. Record No. 031016 OPINION BY JUSTICE ELIZABETH B. LACY
March 5, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Lafate Kingsbur, III, appeals the judgment of the Court
of Appeals affirming his conviction for possession of a
firearm by a convicted felon in violation of Code § 18.2-
308.2. Kingsbur contends that the Commonwealth failed to
prove beyond a reasonable doubt that the handgun he possessed
qualified as a firearm under the statute. Because we conclude
that the trial court's factual determination that the handgun
was a firearm was not plainly wrong or without evidence to
support it, we will affirm the judgment of the Court of
Appeals.
FACTS
On the evening of October 1, 2001, two officers of the
Portsmouth Police Department saw Kingsbur outside Swanson
Homes, a Portsmouth housing project. One of the officers saw
a white grocery bag "wrapped up" in Kingsbur's hand. When the
officers approached, Kingsbur put the bag down next to a trash
can. The officers told Kingsbur that he was under arrest for
trespassing.
Suspecting that Kingsbur had a weapon or drugs, the
officers retrieved the white bag and found a handgun inside.
Kingsbur told the officers he had found the gun in a park
earlier and was "trying to find somewhere to throw it down."
Kingsbur testified that he wanted to dispose of the handgun
because he did not want it to fall into a child's hands and
that he knew the gun did not work because the "chambers . . .
fell off" when he picked up the gun. He also testified that
he put the gun down by the trash can because he did not want
to get caught with it. There were no bullets in the gun.
Kingsbur was charged with a violation of Code § 18.2-308.2.
The certificate of analysis admitted as an exhibit at
Kingsbur’s bench trial stated that the gun was a Davis
Industries, Model P-32, .32 caliber automatic pistol. The
certificate also stated that the pistol "does not function and
could not be test fired" because there were ten missing parts.
Kingsbur argued that the handgun’s state of disrepair rendered
it inoperable and, therefore, that the Commonwealth failed to
show that the handgun he possessed was a firearm within the
meaning of Code § 18.2-308.2.
The trial court applied the Court of Appeals' opinion in
Armstrong v. Commonwealth, 36 Va. App. 312, 549 S.E.2d 641
(2001) (en banc). In that opinion, the Court of Appeals held
that for purposes of Code § 18.2-308.2 a "firearm" was an
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instrument "made with the purpose to expel a projectile by
gunpowder or other explosion" and that proof of present
operability was not required. Id. at 321-22, 549 S.E.2d at
645-46. Accordingly, the trial court rejected Kingsbur's
motion to strike the Commonwealth's evidence based on the
inoperability of the handgun. Kingsbur was convicted of
possession of a firearm by a convicted felon and sentenced to
five years in prison.
The Court of Appeals affirmed Kingsbur's conviction based
on this Court's opinion in Armstrong v. Commonwealth, 263 Va.
573, 584, 562 S.E.2d 139, 145 (2002). Kingsbur v.
Commonwealth, 40 Va. App. 307, 311, 579 S.E.2d 357, 359
(2003).
DISCUSSION
Kingsbur argues here, as he did in the Court of Appeals,
that the trial court should have granted his motion to strike
the Commonwealth's evidence because the evidence failed to
show that Kingsbur possessed a firearm within the meaning of
Code § 18.2-308.2. Kingsbur asserts that, under this Court’s
opinion in Armstrong, a firearm that has lost the
characteristic of firing a projectile by means of an explosion
is no longer a firearm for purposes of the statute. Here the
evidence showed that the handgun at issue could not be test
fired, did not function, was missing parts, and "came apart"
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in Kingsbur's hands when he first picked it up. These facts,
Kingsbur asserts, show that the handgun was in such a state of
disrepair that it ceased to function as a firearm within the
meaning of Code § 18.2-308.2. Kingsbur also asserted that it
was the burden of the Commonwealth to prove that the handgun
had not lost its characteristics as a firearm.
In Armstrong, we approved the holding of the Court of
Appeals that a firearm is an instrument which was "designed,
made, and intended to expel a projectile by means of an
explosion." 263 Va. at 585, 562 S.E.2d at 146. In a footnote
we stated:
Common sense and experience leave no room for
doubt that an instrument originally designed,
made, and intended to expel a projectile by force
of an explosion can lose this characteristic in
many ways such that it would no longer be fairly
considered a firearm.
Id. at 584 n.6, 562 S.E.2d at 145 n.6. This statement, upon
which Kingsbur relies, refers to exceptional circumstances and
not simply a showing of disrepair that might preclude
expelling a projectile by explosion at a particular point in
time. Id. at 584, 562 S.E.2d at 146.
Contrary to Kingsbur’s assertions, the Commonwealth did
not have the burden of disproving that the handgun lost its
characteristics as a firearm. The Commonwealth had the burden
of presenting prima facie evidence on all elements of the
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crime charged and, once the Commonwealth met that burden,
Kingsbur had the option of presenting evidence raising a
reasonable doubt regarding one or more of those elements.
However, the ultimate burden of persuasion always remained on
the Commonwealth and if, considering the evidence as a whole,
both for the Commonwealth and Kingsbur, there existed a
reasonable doubt of his guilt, he was entitled to be acquitted
of the offense. See Dobson v. Commonwealth, 260 Va. 71, 74-
75, 531 S.E.2d 569, 571 (2000); Hodge v. Commonwealth, 217 Va.
338, 342, 228 S.E.2d 692, 695 (1976).
We therefore turn to Kingsbur's challenge to the
sufficiency of the evidence. Applying well-known principles
of appellate review, we view the evidence in the light most
favorable to the Commonwealth and will not set aside the
verdict unless it is plainly wrong or without evidence to
support it. Beavers v. Commonwealth, 245 Va. 268, 281-82, 427
S.E.2d 411, 421 (1993).
Here, the Commonwealth was required to prove beyond a
reasonable doubt that the handgun in Kingsbur's possession was
designed, made, and intended to fire or expel a projectile by
means of an explosion. It was not obligated to prove that the
handgun was operable. Armstrong, 263 Va. at 584, 562 S.E.2d
at 145. The certificate of analysis identified the specific
model of the handgun. Kingsbur considered it a handgun
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because he did not want a child to "[get] ahold of it" and, as
a convicted felon, he knew he should not get caught with it.
This evidence supports a finding that the handgun Kingsbur
possessed was designed, made, and intended to expel a
projectile by means of an explosion.
The evidence Kingsbur cites to support his position falls
far short of the exceptional circumstance identified in
Armstrong. The evidence of inoperability because of the
missing parts indicates in this case, as it did in Armstrong,
that the handgun could have been repaired. Id. at 584, 562
S.E.2d at 146. Kingsbur's testimony that the chambers of the
handgun "just fell off of it" is insufficient to support a
finding that the handgun in question lost its characteristic
as a firearm. Furthermore, the arresting officer testified
that the handgun appeared to be "intact," and the certificate
of analysis did not reflect that the handgun was in more than
one piece.
For the above reasons, we hold that the trial court did
not err in concluding that the handgun in issue was a firearm
for purposes of Code § 18.2-308.2 and in refusing to grant
Kingsbur's motion to strike.
Accordingly the judgment of the Court of Appeals is
affirmed.
Affirmed.
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