Armstrong v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements
and Agee
Argued at Richmond, Virginia

ERIC WAYNE ARMSTRONG
OPINION BY
v. Record No. 1388-99-3 JUDGE G. STEVEN AGEE
JULY 31, 2001
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF HIGHLAND COUNTY
Duncan M. Byrd, Jr., Judge

Ronald W. Vaught for appellant.

Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Eric Wayne Armstrong, appellant, was convicted in a bench

trial of possession of a firearm by a convicted felon, in

violation of Code § 18.2-308.2. 1 He contends the evidence was

insufficient to prove that the object he possessed was a firearm

because it was not "operable."

In an unpublished opinion, a divided panel of this Court

affirmed the conviction. Armstrong v. Commonwealth, No.

1388-99-3 (Va. Ct. App. Nov. 21, 2000). However, we stayed the

1
Appellant was also convicted of possession of marijuana,
in violation of Code § 18.2-250.1, which is not the subject of
this appeal.
mandate of that decision and granted a rehearing en banc. Upon

rehearing en banc, the stay of the mandate is lifted, and the

judgment of the trial court is affirmed for the reasons set

forth below.

I.

"Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom." Green v. Commonwealth,

32 Va. App. 438, 442, 528 S.E.2d 187, 189 (2000) (citing Juares

v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678

(1997)).

So viewed, the evidence established that during a search of

the appellant's residence on February 12, 1998, Sheriff Herbert

Lightner of Highland County observed what appeared to be a

semi-automatic .22 caliber rifle and a BB gun inside a gun

cabinet. The gun cabinet was not opened, and neither gun was

examined. Neither the rifle nor the BB gun was seized at that

time.

The appellant, who had a prior felony conviction, was later

charged with possession of a firearm by a convicted felon. 2 At

the preliminary hearing, defense counsel delivered the two

weapons to the sheriff. No one test-fired the guns. At trial,

2
At trial, the Commonwealth did not rely upon the BB gun as
the basis for the firearm conviction.

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Sheriff Lightner testified that the .22 caliber rifle appeared

to be the same weapon he saw at the appellant's house.

Melvin Eugene Armstrong, the appellant's cousin, testified

at trial that the .22 caliber rifle belonged to him. Melvin

stated that he purchased the rifle at K-Mart in October 1997 and

produced a receipt from the store with a serial number matching

the number on the rifle. Melvin, who was in the military at the

time, explained that the rifle "wouldn't fire." He testified:

"You could pull the trigger but the gun won't go off. . . .

[T]he firing pin ain't [sic] hitting the casing so I assume it's

got something to do with the spring in there or the firing pin

one." He said that while he was out hunting, "it just stopped

shooting."

The appellant did not dispute the existence of his prior

felony conviction or his possession of the rifle. Instead, he

argued that the rifle was not a "firearm" within the meaning of

Code § 18.2-308.2 because it was not presently operable: "If

the gun is not operable, and it's unconditional evidence . . . ,

then it's not a firearm."

The trial court disagreed and found the appellant guilty of

possession of a firearm by a convicted felon.

II.

On appeal, the appellant concedes that the rifle was

"designed or intended to expel a projectile by discharge or

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explosion of gun powder." 3 However, he contends the gun was

"inoperable" based upon the "credible, affirmative, and

unrebutted" testimony of Melvin Armstrong. Accordingly, the

appellant concludes, the evidence was insufficient to sustain

his conviction.

The Commonwealth contends the trial court was free to

disbelieve Melvin Armstrong's testimony that the rifle "wouldn't

fire." The Commonwealth further argues that Sheriff Lightner's

testimony that he saw the .22 caliber rifle was sufficient to

convict the appellant of this offense. We agree with the trial

court's finding but for different reasons than articulated by

it.

Code § 18.2-308.2, at the time of the offense, provided

that it was unlawful for a previously convicted felon to

"knowingly and intentionally possess or transport any firearm."

The statute does not contain a definition of "firearm."

In Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615,

aff'd on reh'g en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993),

we held:

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"

3
The appellant does not contest that he was in possession
of the .22 caliber rifle.

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 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.
"It shall be unlawful for any person who has
been convicted of a felony . . . to . . .
possess or transport any firearm or to . . .
carry about his person, [even if] hid[den]
from common observation, any weapon
described in § 18.2-308 A."

Id. at 357-58, 429 S.E.2d at 617 (quoting Code § 18.2-308.2(A)).

Subsequent panel decisions of this Court have enlarged the

holding in Jones, which held that a BB gun was not within the

"traditional definition of a firearm" for purposes of Code

§ 18.2-308.2. In Gregory v. Commonwealth, 28 Va. App. 393, 504

S.E.2d 886 (1998), however, we diverted from the holding in

Jones and required the Commonwealth to prove the following

elements in order to convict a felon for possession of a

firearm:

(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. We reiterated these two elements

of required proof in Williams v. Commonwealth, 33 Va. App. 796,

537 S.E.2d 21 (2000).

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. It then

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 must prove that the firearm is operational
or can readily be made operational.

Id. at 807, 537 S.E.2d at 26 (citation omitted). In furtherance

of this second element, we explained:

[T]he statute prohibits felons from
possessing actual firearms that are
presently operational or can readily or
easily be made operational or capable of
being fired with minimal effort and
expertise.

Id. at 806-07, 537 S.E.2d at 26. It is this latter judicially

created element of proof, that the felon's weapon is "presently

operational," that is contrary to the plain language of the

statute and has caused unnecessary confusion.

In the context of related statutes, the ready capability

element has been phrased as "operable" or operable "on a

moment's notice." Where the firearm, a sawed-off shotgun,

lacked a firing pin in Rogers v. Commonwealth, 14 Va. App. 774,

418 S.E.2d 727 (1992), we held that the gun was close enough to

actual firing capacity to justify a conviction for possession of

the firearm in violation of Code § 18.2-300 (the Sawed-off

Shotgun Act). Similarly in Timmons v. Commonwealth, 15 Va. App.

196, 421 S.E.2d 894 (1992), we held that the absence of the

gun's ammunition clip did not deprive the firearm of its status

as operable and, thus, we sustained the defendant's conviction

under Code § 18.2-308.4 (possession of a firearm while in

possession of cocaine). Yet, in Williams, we held that the

element of operability was not proven where the convicted

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felon's gun was too rusty to fire at the time of his arrest. We

reversed Williams' conviction for possessing the firearm. 33

Va. App. at 808, 537 S.E.2d at 27.

Contrasted with offenses committed in violation of Code

§ 18.2-53.1, the act of firearm possession under Code

§ 18.2-308.2 (or related statutes) involves no perception

element by a victim. 4 The crime is complete by the felon's

possession of the weapon. The statute is interpreted in this

fashion to further the legislative intent of keeping firearms

4
Our decisions, as well as those of the Supreme Court of
Virginia, have read the term "firearm," as used in Code
§ 18.2-53.1, to include "anything that the victim reasonably
perceives to be a firearm, even though it may not in actuality be
a weapon or be capable of firing a projectile by any means."
Holloman v. Commonwealth, 221 Va. 196, 199, 269 S.E.2d 356, 358
(1980). Operability or actual capacity of the firearm to fire is
not an element of a violation of Code § 18.2-53.1, which
prohibits any person (not just felons) from using a firearm while
committing a felony. Accordingly, unlike the result in Williams,
we held in Miller v. Commonwealth, 23 Va. App. 208, 475 S.E.2d
828 (1996), that a rusty, inoperable revolver used in a robbery
was a firearm under Code § 18.2-53.1. We affirmed the trial
court's finding that the rust on the gun did not affect its
appearance and that the weapon had not "lost its identity as a
firearm." Id. at 213, 475 S.E.2d at 830.
Jones differentiated a "firearm" in the possession of a
convicted felon under Code § 18.2-308.2 from a "firearm" used in
the commission of a felony under Code § 18.2-53.1. The basis for
the distinction is not whether a weapon "designed or intended to
expel projectiles by the discharge or explosion of gunpowder"
actually works at the time of a felonious act. Rather, the
distinction is that whatever object is used to perpetrate a
felony (robbery, for instance) must reasonably create the
perception in the victim of fear of harm. The victim must
perceive the toy gun as a real firearm in order for the would-be
robber to engender the necessary threat and intimidation to
successfully complete his task and also be guilty of violating
Code § 18.2-53.1.
It is for this reason that the Supreme Court of Virginia in
Holloman held the use of a BB gun, while not within the
traditional definition of a firearm, was a "firearm" in the
reasonable perception of the victim of a robbery and, therefore,

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out of the hands of convicted felons. Jones concisely sets out

the General Assembly's intent in adopting Code § 18.2-308.2:

[I]t 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.

16 Va. App. at 358, 429 S.E.2d at 617.

Nothing in this statement of policy, or in the plain

language of the statute, bifurcates convicted felons with

firearms into classes of those (1) possessing firearms ready to

fire immediately, or (2) possessing firearms which can fire with

some repairs or adjustments.

Further, because there is no victim perception element to

Code § 18.2-308.2, as there is under Code § 18.2-53.1, there is

no public policy or legislative intent to find a felon who

possesses a BB gun, a squirt gun or a plastic toy gun to be in

possession of a firearm. That is all the Jones decision held.

When the General Assembly used the term "firearm" in Code

§ 18.2-308.2, it meant a "firearm" is a firearm under that

statute if it was made to shoot bullets, not BBs or tap water.

Had later interpretations of Jones limited the holding to

devices such as toy weapons, squirt guns or BB guns, those

decisions may not have run afoul of the plain meaning of the

statute or created the byzantine network of decisions which has

was a firearm for purposes of Code § 18.2-53.1. 221 Va. at 198,
269 S.E.2d at 358.

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since evolved. The aftermath of Jones has seen creative

findings of circumstantial proof with regard to the operability

of the accused felon's firearm which are not only difficult to

reconcile, but also provide little guidance to the trial courts.

For instance, in Redd v. Commonwealth, 29 Va. App. 256, 511

S.E.2d 436 (1999), no gun was seized from Redd or produced at

her trial for possession of a firearm by a previously convicted

felon. Nonetheless, Redd's threat to kill the clerk and her

placing a "long black gun" on the store counter was sufficient

to justify the inference that the object was an operable

firearm. In Taylor v. Commonwealth, 33 Va. App. 735, 536 S.E.2d

922 (2000), a case under Code § 18.2-308.4, the defendant's

exposure of a firearm tucked in his waistband was sufficient to

permit the inference that it was a functional, operational

firearm and sustain a conviction. As a corollary, decisions

such as Rogers, Timmons, Gregory and Williams reflect a highly

subjective approach in determining whether a felon's gun, which

is in evidence at trial, is sufficiently close to firing status

to justify a conviction.

Code § 18.2-308.2 prohibits a convicted felon "to knowingly

and intentionally possess or transport any firearm." (Emphasis

added). While the statute does not define firearm, the adjacent

"instant check" statute, Code § 18.2-308.2:2, provides "firearm

means any handgun, shotgun or rifle which expels a projectile by

action of an explosion." Similarly, the plain dictionary

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meaning of "firearm" is: "A weapon that expels a projectile

(such as a bullet or pellets) by the combustion of gunpowder or

other explosive." Black's Law Dictionary 648 (7th ed. 1999).

Nothing in these or similar definitions bifurcates firearms into

actual operational and not fully functional categories.

The application of Jones in subsequent cases has created a

body of law that is contrary to the plain meaning of the statute

and attributes a legislative intent where none exists. The

practical result of the "operability" element has left a

confusing zigzag trail for the trial courts to decipher. This

is particularly apparent in decisions like Redd and Taylor where

no gun is in evidence and there is no direct evidence as to

whether the weapon functions, but an inference of operability

may be drawn. For instance, if, in Redd, the only action of the

accused had been to place the weapon on the store counter

without a verbal threat, could an inference of operability

properly be drawn?

Even in cases where the gun is introduced into evidence,

the question of operability engenders innumerable scenarios as

to when or if the weapon could become operable or capable of

firing. Did the legislature intend there to be a time test,

under Code § 18.2-308.2, on the felon's personal ability to make

the weapon operable? If the weapon required more than the

insertion of the firing pin or ammunition clip, would the

weapon's operability be judged by the felon's ability to make

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the weapon fire, his access to contacts who could perform that

function or his financial ability to retain a gunsmith who could

timely do so? Would the felon be required to be able to make

the weapon operable within a given time period (ten minutes or

ten hours)? It cannot be said that the General Assembly

"intended" such a test where the clear and unambiguous meaning

of the statute is to prohibit a felon from possessing any

firearm.

When the legislature has spoken plainly
courts may not change or amend legislative
enactments under the guise of construing
them. The province of construction lies
wholly within the domain of ambiguity.
There is no ambiguity in the language that
forbids a convicted felon to carry a
firearm. That which is plain needs no
interpretation. Winston v. City of
Richmond, 196 Va. 403, 407-08, 83 S.E.2d
728, 731 (1954).

Jones, 16 Va. App. at 358, 429 S.E.2d at 617.

The General Assembly included no language in the statute to

circumscribe the absolute prohibition of a convicted felon's

possession of a firearm. It matters not whether the gun's

current condition is "operable" or "inoperable" or whether a can

of WD-40 or the local gunsmith could render the firearm fully

functional.

In a prosecution under Code § 18.2-308.2, once the

Commonwealth proves the accused is a convicted felon who

possessed an object made to "expel a projectile by the

combustion of gunpowder or other explosive," then it has proven

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all the necessary elements of the crime based on the plain

language of the statute. When enacting Code § 18.2-308.2, the

General Assembly's intent was clear: A felon cannot possess any

firearm. Had the legislature wished to draw a distinction

between operable and inoperable firearms, it would have done so

with clear and distinct language. It did not, and neither did

Jones. The reference in Jones to a firearm's "actual capacity

to do serious harm" relates to "a weapon designed or intended to

expel projectiles by the discharge or explosion of gunpowder"

not to a separate requirement of operability.

As the foregoing reflects, we have made a detailed inquiry

finding "a mistake exists in our prior decisions." Accordingly,

we exercise the clear authority under Code § 17.1-402(D) to

overrule those decisions.

We overrule Gregory and Williams to the extent such cases

are read to require the Commonwealth to prove as an element of

violating Code § 18.2-308.2 that the convicted felon's firearm

was presently operational, was capable of being fired, could be

readily converted to firing or could readily be made

operational. 5 We hold Jones established no such requirement. To

the extent Jones is read inconsistently with this opinion, Jones

is also overruled.

5
The same rule shall apply in prosecutions under Code
§§ 18.2-300 and 18.2-304.4 so that no proof of operability of
the sawed-off shotgun, sawed-off rifle or firearm, as
applicable, shall be required.

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 The dissent's inference that the United States

Constitution's ex post facto protection is somehow implicated by

our decision is inaccurate. None of the cases cited stand for

that proposition, particularly where a prior panel decision is

overruled en banc on the basis of clear error in application of

a statute. Moreover, the appellant's conviction in the case at

bar is based on acts committed prior to the decisions in Gregory

and Williams.

Code § 18.2-308.2 only requires the Commonwealth to prove,

as elements of the crime, that the accused is a convicted felon

and that he or she possessed an object which was made with the

purpose to expel a projectile by gunpowder or other explosion.

In the case at bar, the Commonwealth proved these elements at

trial and, therefore, the appellant's conviction is affirmed.

Affirmed.

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Benton, J., dissenting.

Applying Code § 18.2-308.2, a panel of this Court in Jones

v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993), noted

that "[t]he legislature has assigned various meanings to the

term 'firearm' in [different] sections of Title 18.2," id. at

356, 429 S.E.2d at 615-16, and concluded that "whether the term

'firearm' when used in a statute without being defined is to be

given its traditional meaning or a more expansive meaning

depends upon the purpose and policy underlying the particular

statute." Id. at 357, 429 S.E.2d at 616. Based upon a review

of the various statutes, the decision further concluded as

follows:

[W]hen a statute is designed only to
proscribe the act of possessing a firearm or
the conduct of a felon in order to reduce a
real threat of harm to the public, a
narrower, more traditional definition of
"firearm" is required. See Timmons v.
Commonwealth, 15 Va. App. 196, 200-01, 421
S.E.2d 894, 897 (1992) ("firearm" under
statute penalizing the possession of a
firearm while in possession of cocaine does
not include "'any object' that [appears to
have] capability of firing a projectile,
even if it lacks that capability").

Id.

It was in the context of a review of all the firearm

statutes that Jones construed the term "firearm" in Code

§ 18.2-308.2 and held the following:

Code § 18.2-308.2 prohibits a felon from
possessing a device that has the actual
capacity to do serious harm because of its

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 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.

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

that decision en banc. Jones v. Commonwealth, 17 Va. App. 233,

436 S.E.2d 192 (1993) (en banc).

In the eight years since Jones, neither the Supreme Court

nor the legislature has reviewed or changed the definition of

firearm that Jones applied to Code § 18.2-308.2. Indeed,

because the General Assembly has revised the firearm statutes on

several occasions without any indication that it has disagreed

with our definition, "the General Assembly is presumed to use

the language as judicially defined." Williams v. Fairfax Co.

Hous. Auth., 227 Va. 309, 314, 315 S.E.2d 202, 205 (1984). See

also Burns v. Stafford County, 227 Va. 354, 360, 315 S.E.2d 856,

860 (1984).

Our decisions in Williams v. Commonwealth, 33 Va. App. 796,

537 S.E.2d 21 (2000), and Gregory v. Commonwealth, 28 Va. App.

393, 504 S.E.2d 886 (1998), have been faithful to the definition

of firearm that we used in Jones and based on the construction

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of the statutes. The decision in Williams particularly and

thoroughly analyzed Jones and the cases that followed Jones in

determining the type of weapon which is proscribed by Code

§ 18.2-308.2. See 33 Va. App. at 800-08, 537 S.E.2d at 23-27.

The majority now interprets Code § 18.2-308.2 to require

"only [that] . . . the Commonwealth . . . prove, as elements of

the crime, that the accused is a convicted felon and that he or

she possessed an object which was made with the purpose to expel

a projectile by gunpowder or other explosion." Although the

majority professes to follow Jones, it has eliminated the

significant element of that decision's holding, the "actual

capacity" of the firearm to operate. Simply put, the majority

opinion has re-defined the term "firearm" as used in statutes we

analyzed in Williams, Gregory, and Jones.

Regardless of whether the majority overrules Jones and its

progeny or merely overrules Williams and Gregory, the majority

makes no clear "inquiry . . . whether flagrant error or mistake

exists in the [prior] decision[s]." Pulliam v. Coastal

Emergency Servs., 257 Va. 1, 10, 509 S.E.2d 307, 312 (1999).

Those decisions have stood "without any indication to the bench,

the bar, or the public that flagrant error or mistake exists in

the decision[s]." Id. at 25, 509 S.E.2d at 321. Indeed, the

Commonwealth in this case does not challenge the definition of

"firearm" enunciated in Jones, Williams, and Gregory. These

factors indicate that the principle needs no revision.

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Furthermore, the majority has chosen to jettison precedent, not

in a tort or contract case involving the payment or non-payment

of money to a party, but in a criminal case involving the

liberty of a citizen of the Commonwealth.

Although, strictly speaking, judicial decisions do not

implicate the Ex Post Facto Clause of the United States

Constitution, see United States v. Wasserman, 504 F.2d 1012,

1015 (5th Cir. 1974) (citing James v. United States, 366 U.S.

213, 247-48 (1961) (separate opinion of JJ. Harlan and

Frankfurter)), the same considerations bind the judiciary.

Indeed, the United States Supreme Court has held as follows:

[A]n unforeseeable judicial enlargement of a
criminal statute, applied retroactively,
operates precisely like an ex post facto
law, such as Art. I, § 10, of the
Constitution forbids. An ex post facto law
has been defined by this Court as one 'that
makes an action done before the passing of
the law, and which was innocent when done,
criminal; and punishes such action,' or
'that aggravates a crime, or makes it
greater than it was, when committed.' If a
state legislature is barred by the Ex Post
Facto Clause from passing such a law, it
must follow that a State Supreme Court is
barred by the Due Process Clause from
achieving precisely the same result by
judicial construction.

Bouie v. City of Columbia, 378 U.S. 347, 353 (1964) (citation

omitted).

Prior to today's decision, the Commonwealth had to prove

two discrete elements to demonstrate the existence of a firearm

to convict an accused under Code § 18.2-308.2. Gregory, 28 Va.

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App. at 400, 504 S.E.2d at 889. With the majority opinion's

elimination of the "actual capacity" requirement from Jones, the

Commonwealth will only have to prove one element. Such a

radical lowering of the threshold for conviction changes the

nature of the conduct proscribed and punishes conduct that was

legal before the publication of the current opinion. As such,

at the very least, it cannot apply in this case, where the

evidence was insufficient to convict Armstrong under our prior

interpretation of this statute. As stated in the dissent from

the panel decision, "the Commonwealth failed to prove that 'the

weapon could be readily rendered functional.'" Armstrong v.

Commonwealth, No. 1388-99-3 (Va. Ct. App. Nov. 21, 2000)

(quoting Williams, 33 Va. App. at 808, 537 S.E.2d at 27).

Therefore, because the Commonwealth did not bear its burden of

proof, we should reverse the conviction.

In conclusion, I believe that Jones and its progeny

properly construed Code § 18.2-308.2 and that today's majority's

view, which was not advanced on brief by either party,

represents merely another way of looking at the same issue we

previously decided. Its only compelling feature is that it has

garnered a sufficient number of votes to overrule our prior

decisions.

For these reasons, I would reverse the conviction. I

dissent.

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