COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
LAFATE KINGSBUR, III
OPINION BY
v. Record No. 0334-02-1 JUDGE D. ARTHUR KELSEY
APRIL 15, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
Charles B. Lustig, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted Lafate Kingsbur, III, of possession
of a firearm by a convicted felon in violation of Code
§ 18.2-308.2. Kingsbur contends that the evidence failed to prove
that the handgun he possessed constituted a "firearm" within the
meaning of the statute. Finding no error, we affirm the trial
court.
I.
On appeal, we review the evidence "in the light most
favorable to the Commonwealth." Morrisette v. Commonwealth, 264
Va. 386, 389, 569 S.E.2d 47, 50 (2002). That principle requires
us to "discard the evidence of the accused in conflict with that
of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences
that may be drawn therefrom." Holsapple v. Commonwealth, 39
Va. App. 522, 528, 574 S.E.2d 756, 758-59 (2003) (en banc)
(citation omitted); see also Wactor v. Commonwealth, 38 Va. App.
375, 380, 564 S.E.2d 160, 162 (2002).
Kingsbur was convicted in 1982 for attempted armed robbery.
On October 31, 2002, two officers of the Portsmouth Police
Department observed Kingsbur trespassing on Portsmouth
Redevelopment and Housing Authority property. One of the officers
had previously warned Kingsbur about trespassing. As they
approached Kingsbur, both officers observed him holding a plastic
bag. One of the officers saw Kingsbur putting the bag down next
to a trash receptacle. The officer retrieved the bag and found a
Davis Model P-32, .32 caliber, chrome handgun in the bag. The
officers arrested Kingsbur for possession of a firearm by a
convicted felon under Code § 18.2-308.2.
Kingsbur claimed that he found the handgun lying in the
street adjacent to Prentis Park and that "the chambers just fell
off of it" when he picked it up. Kingsbur nonetheless thought the
handgun sufficiently dangerous, as he explained to the officers,
to "get rid of it" because he "didn't want no kid to get ahold of
it." When the officers asked Kingsbur if he "knew he was not
supposed to have the gun," Kingsbur replied "of course, I knew,
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but I just didn't want to leave it there and a child might have
gotten ahold of it."
At a bench trial on an indictment charging Kingsbur under
Code § 18.2-308.2, the trial court received into evidence a
certificate of analysis stating that the handgun was missing
enough internal parts to render it inoperable and incapable of
being test fired. 1 On this ground, Kingsbur moved to strike the
Commonwealth's evidence. The trial judge denied the motion,
ruling that our opinion in Armstrong v. Commonwealth, 36 Va. App.
312, 549 S.E.2d 641 (2001) (en banc), rendered the question of the
firearm's operability a non-issue. Noting that the Virginia
Supreme Court had agreed to review Armstrong, Kingsbur preserved
his objection pending the outcome of that appeal.
II.
On April 19, 2002, the Virginia Supreme Court affirmed our
decision in Armstrong. "It is not necessary," the Court held,
"that the Commonwealth prove the instrument was 'operable,'
'capable' of being fired, or had the 'actual capacity to do
serious harm'" to obtain a conviction under Code § 18.2-308.2.
Armstrong v. Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145
(2002). Instead, the Commonwealth need only prove the firearm was
1
The handgun was missing the disconnector, cam, firing pin,
sear, firing pin retainer, firing pin spring, recoil spring,
sear spring, disconnector spring, and buffer.
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"designed, made, and intended to expel a projectile by means of an
explosion." Armstrong, 263 Va. at 584, 562 S.E.2d at 145. The
statute nowhere requires a showing that the firearm can actually
be fired. It is enough, Armstrong held, that the firearm was
designed, made, and intended to be fired. See also McDaniel v.
Commonwealth, 264 Va. 429, 574 S.E.2d 234 (2002).
Kingsbur points out, however, that dicta in Armstrong noted
that a firearm "could fall into a state of such significant
disrepair or be altered in such a way that it would cease to be a
'firearm' for purposes of applying Code § 18.2-308.2." Armstrong,
263 Va. at 584, 562 S.E.2d at 145. "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. The Court, however, expressed no opinion "on
the degree of disrepair or alteration" that would be required.
Id.
Kingsbur concedes that the firearm he possessed was designed,
made, and intended to be fired. Even so, Kingsbur argues, the
firearm had fallen into such a state of disrepair that it could no
longer be fairly considered a firearm under the statute. We hold
that the issue raised in the Armstrong dicta, and relied upon here
by Kingsbur, is a question of fact for the fact finder. As such,
it must be upheld unless "plainly wrong or without evidence to
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support it." Pease v. Commonwealth, 39 Va. App. 342, 350, 573
S.E.2d 272, 275 (2002) (en banc) (citations omitted); see also
McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc).
The evidence supports the conclusion that the handgun
possessed by Kingsbur had not lost its character as a firearm.
The Davis Model P-32, .32 caliber handgun was readily identifiable
as a "gun" by Kingsbur, the police officers, a forensic scientist,
and the trial judge. The weapon obviously had not lost its visual
characteristics as a firearm. To be sure, Kingsbur was concerned
enough about the firearm being perceived to be a firearm that
(according to his own testimony) he saw the need to keep it from
getting into the hands of children, and also knew that, as a
convicted felon, he could not legally possess it.
Moreover, the handgun had not been altered, disfigured, or
damaged in any way. True, it could not be fired. But that was
because of missing —— and thus potentially replaceable —— internal
parts, not because of any irreversible physical disfigurement
severe enough to change the character of the object into something
other than a firearm. As in Armstrong, 263 Va. at 585, 562 S.E.2d
at 146, the very evidence that the handgun "was inoperable
indicates that it could have been repaired" and rendered
functional by simply replacing those missing parts.
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III.
The trial court did not err in finding that the Davis Model
P-32 handgun possessed by Kingsbur, a convicted felon, constituted
a "firearm" under Code § 18.2-308.2. We thus affirm the trial
court's judgment.
Affirmed.
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