Williams v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia

MODRELL ANTOINE WILLIAMS, S/K/A
MODRELLE WILLIAMS
OPINION BY
v. Record No. 2778-98-1 JUDGE WILLIAM H. HODGES
NOVEMBER 21, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge

Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.

Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Appellant, Modrell Antoine Williams, appeals his conviction

for possession of a firearm by a convicted felon in violation of

Code § 18.2-308.2. For the reasons set forth below, we reverse.

FACTUAL BACKGROUND

On June 14, 1998, Officer R.K. Butler received information

that someone matching appellant's description had "retrieve[d] a

gun from some bushes." A short time later, Butler located

appellant. Appellant quickly entered a laundromat. Butler

entered and asked appellant, "'Where is it at?'" Appellant

said, "'It's in the trash can'; and he pointed to a small trash

can."
 Butler's partner recovered a gun from the trash can.

Appellant told Butler that "the gun did not belong to him" but

that a man who had taken his money and who appellant had been

chasing had thrown it in the bushes. Because the man allegedly

took appellant's money, appellant told Butler "that he took the

gun, thinking that he had something." Appellant told Butler

that he "thought [he] had something, but [he] tried the trigger,

and [he did not] even think it work[ed]."

Butler testified that the recovered gun, Commonwealth's

Exhibit 1, was a ".38 caliber revolver," manufactured by "Ivan

Johnson Arms." When asked to describe its condition, Butler

explained:

It's rusty. The trigger mechanism does not
seem to make the hammer of the gun actuate.
There may be a defect in the gun. I don't
know if there is a particular way that it
has to be used to make the hammer actuate,
but the trigger doesn't necessarily work
properly; however, it was designed to propel
a projectile.

In arguing his motion to strike, appellant contended the

gun was incapable of creating an explosion, was "defective," and

was inoperable. The prosecutor contended the gun was designed

to propel a missile by means of an explosion and was, therefore,

a firearm. The prosecutor also argued that

there is always potential [for the gun to
fire]. We don't know what it would take to
make that gun an operating gun, and it might
just take a good cleaning. We don't know;
however, what we do know is that the officer

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 testified that it was designed to propel a
projectile through an explosion.
We also have the defendant's statement,
his admission to the police officer, that he
thought he had something . . . .

The trial judge asked to look at the gun one more time,

after which he stated, "I'm going to deny the motion."

DISCUSSION

Introduction

The issue before us is whether the evidence was sufficient

to convict appellant for violating Code § 18.2-308.2. In

resolving that issue, we must first determine whether the

condition of a firearm possessed by a convicted felon may affect

the nature or character of the weapon so as to exclude it as a

proscribed object under the statute. In making that

determination, we analyze Code § 18.2-308.2, our

felon-in-possession statute, and statutory and case law from

Virginia and other jurisdictions dealing with firearms.

The Law in Virginia

Code § 18.2-308.2 makes it "unlawful for . . . any person

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

intentionally possess or transport any firearm." This code

section contains no definition of "firearm."

In Jones v. Commonwealth, 16 Va. App. 354, 356, 429 S.E.2d

615, 616, aff'd on reh'g en banc, 17 Va. App. 233, 436 S.E.2d

192 (1993), the defendant was convicted of violating Code

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§ 18.2-308.2 based on his possession of a BB handgun. We looked

to the legislature's purpose in enacting the statute and

explained:

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"
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. . . . Accordingly, Code
§ 18.2-308.2 does not include a BB handgun,
which is a device that propels a projectile
by pneumatic pressure.

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

In Gregory v. Commonwealth, 28 Va. App. 393, 504 S.E.2d 886

(1998), a detective arrested Gregory, a convicted felon, on an

outstanding warrant, and "found in Gregory's pocket a magazine

loaded with ten rounds of .22 caliber ammunition." Id. at 397,

504 S.E.2d at 888. From appellant's trailer, the detective

obtained "a .22 caliber Remington Model 522 semi-automatic

rifle." Id. The magazine fit into the rifle. See id.

Gregory contended on appeal that the evidence failed to

prove the object recovered by the detective "was a 'firearm'"

under the statute. See id. at 399, 504 S.E.2d at 889. We
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stated, "in determining whether an item is a 'firearm,' the

Commonwealth must prove two discrete elements: (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 (emphasis added).

Noting that "the best method for proving that an item is a

firearm is presentation of direct forensic evidence of the

nature and operability of the item," we held that

"'[c]ircumstantial evidence is as competent and is entitled to

as much weight as direct evidence'" to prove that the item is a

firearm. Id. (emphasis added).

We affirmed the conviction and found that the item

possessed by Gregory "was designed or intended to expel a

projectile by means of a gunpowder explosion." Id. In

affirming, we reviewed the following circumstantial evidence:

Although the Commonwealth failed to explain
how the rifle operated or to present
ballistics evidence, Detective Mooney
examined the weapon and testified that it
was a .22 caliber, Remington Model 522
semi-automatic rifle. In his testimony, he
referred to the weapon as a "firearm." The
rifle and the loaded magazine were
introduced as exhibits and were evidence
from which the jury could infer that the
rifle was designed or intended to expel
projectiles by the power of explosion of
gunpowder.

Id. Significantly, there was no evidence before the trial court

that Gregory's rifle was incapable of expelling a projectile by

an explosion.
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 In Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436

(1999), the defendant, "a previously convicted felon, entered a

convenience store and placed a 'long, black gun' on the

counter." Id. at 258, 511 S.E.2d at 437. No gun was seized

from Redd or produced at trial. See id. at 260, 511 S.E.2d at

438 (Benton, J., dissenting, on the ground that the Commonwealth

failed to prove that the object placed on counter "had the

actual ability to expel a projectile by the power of an

explosion"). We affirmed the conviction, holding:

The store clerk's description of the object
brandished by Redd as "a long black gun" is
insufficient, alone, to prove that the
object possessed the "ability to expel a
projectile by the power of an explosion."
However, Redd's threat, upon presenting the
weapon, to kill the clerk was an implied
assertion that the object was a functioning
weapon, being in fact the firearm that it
appeared to be and possessing the power to
kill. This implied assertion, which was
corroborated by the appearance of the object
and was uncontradicted by any other
evidence, was evidence sufficient to support
the trial court's finding that the object
was a firearm.

Id. at 259, 511 S.E.2d at 438 (emphases added).

In Jones and Gregory, we attempted to define the term

"firearm" under Code § 18.2-308.2 in a manner that was

consistent with the legislature's purpose for enacting the

statute. In Jones, we explained that the purpose of the statute

was to keep convicted felons "from possessing a device that has

the actual capacity to do serious harm because of its ability to

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expel a projectile by the power of an explosion." Jones, 16 Va.

App. at 357-58, 429 S.E.2d at 617. The definition put forth in

Jones employs language from Code § 18.2-308.2:2(G), 1 which

defines "Firearm" as "any handgun, shotgun, or rifle which

expels a projectile by action of an explosion." 2

Therefore, the Commonwealth is initially required to prove

that a convicted felon possessed an actual firearm, namely, a

weapon manufactured for the purpose of expelling a projectile by

an explosion. In Jones, we required the firearm to have the

"actual capacity to cause harm" and noted the statute's purpose

to prevent felons from becoming "dangerously armed." Because

Jones involved a BB gun, we did not need to address the

firearm's "actual capacity to cause harm."

In a case decided before Gregory involving a different

firearm statute, we upheld the conviction of a defendant who,

while possessing drugs, possessed a firearm containing no clip

or magazine. See Timmons v. Commonwealth, 15 Va. App. 196, 198,

421 S.E.2d 894, 895 (1992) (involving Code § 18.2-308.4,

prohibiting possession of "a controlled substance classified in

Schedule I or II of the Drug Control Act" while simultaneously

1
Code § 18.2-308.2:2 requires firearm dealers and
purchasers to supply information for criminal history record
information checks.
2
That definition comports with the following definition of
a "firearm" from Black's Law Dictionary 648 (7th ed. 1999): "A
weapon that expels a projectile (such as a bullet or pellets) by
the combustion of gunpowder or other explosive."
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possessing any firearm). Timmons argued that the .32 caliber

pistol was not a firearm under the statute "because the absence

of the clip rendered the pistol inoperable at the time it was

seized." Id. The trial court erroneously instructed the jury

that "'[a] firearm is any object which gives the appearance of

having the capability of firing a projectile" whether or not it

has "the capability of firing a projectile.'" Id. (emphasis

added). Because the instruction allowed the jury to convict

appellant for possessing "'any object,' whether that object is

an actual weapon or merely a toy," we held the instruction was

too broad. Id. at 199, 421 S.E.2d at 896. However, we found

such error harmless under the facts of the case. See id. We

explained:

There is no dispute that the "object"
Timmons was charged with possessing was a
.32 caliber semi-automatic pistol. In the
context of this case, the jury was not
concerned with "any object" but, rather,
this particular .32 caliber pistol. Thus,
although the broad language in the
instruction included "any object," the
evidence showed that the pistol in this case
was, in fact, a weapon, and not simply an
unidentified object. Because there was no
dispute that the weapon was a .32 caliber
semi-automatic pistol, the objectionable
language in the instruction did not affect
any issue that was in dispute and,
therefore, did not affect the verdict.

Id.

Relying on Rogers v. Commonwealth, 14 Va. App. 774, 418

S.E.2d 727 (1992), we explained in Timmons:

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 [A] weapon is not excluded from the
operation of the statute simply because it
is missing a part at the time it is seized.
In Rogers, we had occasion to consider
whether a weapon, which had no firing pin
when discovered and, thus, "could not be
fired as found," was nonetheless a
"sawed off shotgun" as that term is defined
in the "Sawed-Off" Shotgun Act (Code
§§ 18.2-299 - 18.2-307). The appellant in
Rogers asserted that his conviction for
possession of a sawed-off shotgun should be
reversed because the absence of a firing pin
made the weapon inoperable. In holding that
"the absence of a firing pin in such a
weapon does not exempt it from prohibition
under the Act," we recognized that the
weapon would have become completely operable
"after a moment's delay to insert a firing
pin." We stated that holding otherwise
"'would permit criminals to carry [weapons]
in the first stage of disassembly, ready to
be reassembled on a moment's notice.'
Alternatively, a criminal carrying [such a
weapon] would be allowed to rendezvous with
a confederate carrying the firing pin,
thereby avoiding the application of the
Act."

We find the reasoning in Rogers
persuasive. A clip, like a firing pin, can
be inserted "on a moment's notice" so as to
make the weapon operable. To hold that a
weapon merely missing a clip falls outside
the scope of the statute would be tantamount
to holding that criminals may carry weapons
while possessing controlled substances, so
long as the weapon is missing one part that
could be quickly inserted "on a moment's
notice." As in Rogers, we believe that this
would produce a result unintended by the
legislature. Therefore, Timmons' contention
that a weapon must be operable when
discovered in order to fall within the
purview of Code § 18.2-308.4 is without
merit.

15 Va. App. at 200-01, 421 S.E.2d at 897 (emphasis added).

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 In Rogers, the evidence established that

[t]he weapon had no firing pin when
discovered, and therefore could not be fired
as found. Additionally, no firing pin was
recovered from appellant. However, the
weapon could be made to fire by inserting a
small nail or pin. No specific expertise
would be required to insert such a pin.

14 Va. App. at 776, 418 S.E.2d at 728 (emphasis added).

Except for the absence of the clip in Timmons and the

absence of the firing pin in Rogers, conditions that could

quickly and easily be remedied, there was no evidence that the

weapons would not operate after the missing magazine or firing

pin was inserted.

In Jones and Gregory, we set forth the purpose of the

statute and explained the elements that the Commonwealth must

prove. See Gregory, 28 Va. App. at 399, 504 S.E.2d at 889

(Commonwealth must prove that weapon was designed or intended to

expel projectiles by explosion and that it is capable of doing

so); Jones, 16 Va. App. at 357, 429 S.E.2d at 617 (Code

§ 18.2-308.2 prohibits felons from possessing device that has

actual capacity to do serious harm).

ANALYSIS

Introduction

In explaining our analysis, we feel it important to

distinguish cases like this one, where the object is recovered,

produced at trial and proven to be an actual firearm, from cases

in which no object is recovered and produced at trial. Cf.
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Redd, 29 Va. App. at 260, 511 S.E.2d at 438 (because no object

was recovered or produced, Commonwealth was required to use

circumstantial evidence to establish whether object was actual

firearm). Therefore, the following analysis is limited to

establishing whether an actual firearm is operational or can be

readily made operational.

Operability

Here, the Commonwealth's evidence established that

appellant possessed an actual firearm designed for the intended

purpose of expelling a projectile by an explosion. The

Commonwealth's evidence also established that the firearm was in

disrepair and that neither the hammer nor the trigger of the

firearm was operational. The Commonwealth presented no evidence

explaining why the gun did not operate or what repairs, if any,

could or would make the firearm operational.

Because the statute is intended to prevent harm from

convicted felons who become dangerously armed, we hold that the

statute prohibits felons from possessing actual firearms that

are presently operational or that can readily or easily be made

operational or capable of being fired with minimal effort and

expertise. To that end, we agree with the reasoning used in

Timmons and Rogers that a weapon does not cease to be a firearm

merely because it has no present or immediate capacity to fire a

projectile. In those cases, which dealt with other firearm

statutes, the absence of a firing pin or a loaded magazine were
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deemed deficiencies that could easily and readily be corrected.

To hold that an object in such condition is not a firearm having

the capacity to cause harm would allow convicted felons to

possess a temporarily disabled or unloaded firearm that could

quickly be made dangerous. Such a result would thwart the

statute's purpose. See State v. Anderson, 971 P.2d 585, 591

(Wash. Ct. App. 1999) ("It begs reason to assume that our

Legislature intended to allow convicted felons to possess

firearms so long as they are unloaded, or so long as they are

temporarily in disrepair, or so long as they are temporarily

disassembled, or so long as they are not immediately

operable.").

Sufficiency of the Evidence

Under the above definition, the Commonwealth is required to

prove that the accused possessed an actual firearm that is, or

can readily be made, operational. Thus, 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. See Jones, 16 Va. App. at 357-58,

429 S.E.2d at 617. It then must prove that the firearm is

operational or can readily be made operational. Direct evidence

that the police test-fired the firearm would provide the best

proof of the firearm's operability; however, "[c]ircumstantial

evidence is as competent and is entitled to as much weight as

direct evidence, provided it is sufficiently convincing to
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exclude every reasonable hypothesis except that of guilt."

Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876

(1983); cf. Byers v. Commonwealth, 23 Va. App. 146, 150-51, 474

S.E.2d 852, 854 (1996) (explaining that proof of "actual"

possession of a firearm under Code § 18.2-53.1 may be

established by circumstantial evidence, direct evidence, or

both); see also Commonwealth v. Layton, 307 A.2d 843, 844 (Pa.

1973) (fact finder may infer operability from object that looks

like, feels like, sounds like or is like, a firearm; such an

inference would be reasonable without direct proof of

operability).

Some circumstances that can establish that an actual

firearm is operational or can readily be made operational

include: whether the object was loaded with bullets; whether any

implied assertions or threats were made as to the weapon's

ability to cause injury; whether the accused possessed

ammunition, magazines or other parts or pieces suggesting that

the firearm was capable of firing or could readily be made

capable of firing; and proper testimony explaining what minor

steps could make the firearm operational. 3

Here, the Commonwealth's evidence established that

appellant possessed an actual firearm, although rusty and

inoperable. Nevertheless, the Commonwealth offered no evidence

3
This list of circumstances is not exclusive.

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that the weapon could be readily rendered functional. 4 Thus, the

Commonwealth proved only that appellant possessed an inoperable

firearm, clearly insufficient proof that the weapon was one

proscribed by Code § 18.2-308.2. Accordingly, appellant's

conviction is reversed, and the indictment is dismissed.

Reversed and dismissed.

4
The prosecutor's speculative oral argument that the
firearm might need only a "good cleaning" was not evidence.

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