COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
JAMES EDWARD GRIFFIN, JR.
OPINION BY
v. Record No. 2131-99-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
SEPTEMBER 12, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
Todd S. Baldwin (Baldwin, Molina, Escoto &
Machado, P.C., on briefs), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James Edward Griffin, Jr. (appellant) was convicted in a
jury trial of felony murder, in violation of Code § 18.2-33, use
of a firearm in the commission of felony murder, in violation of
Code § 18.2-53.1, and possession of a firearm by a convicted
felon, in violation of Code § 18.2-308.2. On appeal, he argues
that: (1) the evidence was insufficient to establish that the
accidental killing occurred within the res gestae of the
predicate felony, possession of a firearm by a convicted felon;
and (2) the use of his juvenile adjudications for purposes of
establishing his "felon" status constituted an ex post facto
application of the law. For the following reasons, we reverse
in part and affirm in part.
I.
When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the prevailing party, and the reasonable
inferences fairly deducible from that evidence support each and
every element of the charged offense. See Moore v.
Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); Derr
v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991).
"In so doing, we must 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." Watkins v.
Commonwealth, 26 Va. App. 335, 349, 494 S.E.2d 859, 866 (1998).
The jury's verdict will not be set aside unless it is plainly
wrong or without evidence to support it. See Code § 8.01-680;
Canipe v. Commonwealth, 25 Va. App. 629, 644, 491 S.E.2d 747,
754 (1997).
The evidence established that on January 21, 1994,
appellant, who was a juvenile at the time, pled guilty in the
Juvenile and Domestic Relations Court of Prince William County
to breaking and entering and grand larceny. These adjudications
were later used as the basis for his "felon" status in the
instant offenses.
In October 1998, appellant was sharing an apartment in
Prince William County with his best friend, Shaquwn Thomas
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(Thomas). The two had known each other for approximately three
and one-half years and considered themselves "like brothers."
On October 16, 1998, appellant and Thomas returned from their
jobs and were preparing to go out for the evening. Appellant
left the apartment to visit his two children, who lived in a
nearby apartment building.
When he returned to his apartment, appellant saw a gun,
which he and Thomas had previously purchased, lying on Thomas's
bed. Appellant picked up the gun and began dancing to music.
The gun discharged and a bullet hit Thomas in the chest from a
distance of three feet or less. Appellant testified as follows:
All I know is when I picked the gun up,
. . . and I don't know, I didn't notice if
the hammer was back . . . but all I remember
was I seen [sic] sparks and I heard a pop go
off and when I looked down the gun was
pointing towards where I know where I was
just talking to [Thomas].
Appellant panicked, ran out of the apartment to a nearby
wooded area, and buried the gun. Jan Quigley, who lived near
appellant's apartment, saw an individual run down the steps to
the edge of the wooded area, squat down for three to five
seconds, and then run back in the opposite direction. After
disposing of the gun, appellant returned to the apartment and
called 911.
Appellant told the 911 operator that a masked assailant had
broken into the apartment, entered Thomas's bedroom, and shot
Thomas. Appellant then called Thomas's father and told him to
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come to the apartment because someone had shot Thomas. When the
police arrived at the scene, appellant told two different
officers that he was in the bathroom when he heard the gunshot.
A police dog found the weapon in the wooded area, and a gunshot
residue test performed at the scene revealed the presence of
primer residue on appellant's hands.
At police headquarters, after learning that Thomas had
died, appellant confessed to Detective Pete Barlow (Barlow) that
the shooting was an accident. According to Barlow,
[appellant] started crying and said, "I
didn't mean to shoot him." . . .
[Appellant] picked the gun up off the bed,
was talking to [Thomas] and the gun just
went off. . . . He said he doesn't remember
if he pulled the trigger. He said he
remembered that his finger was inside the
trigger guard and on the trigger, but --
Appellant explained to Barlow that he knew they were not
"supposed to have the gun in the first place" and that he held
the gun for approximately one minute before it discharged.
Appellant was charged with first-degree murder, felony
murder, use of a firearm in the commission of a felony, and
possession of a firearm by a convicted felon. At trial, Ronald
Kovacs (Kovacs), a jailhouse informant, testified that appellant
admitted to him in jail that appellant shot Thomas during an
argument over a girl. However, two other jailhouse informants
testified that Kovacs admitted to fabricating his testimony
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against appellant in an effort to get a reduced sentence in his
pending cases.
In his defense, appellant testified that the shooting was
an accident and that he had never met Kovacs while incarcerated.
He admitted that he was "kind of feeling [the beat of the
music]" at the time the gun discharged. Appellant explained
that he had lied to the authorities because he "was in a state
of panic" and his "mind was running like . . . a hundred
thousand miles per hour."
After deliberations, the jury acquitted appellant of
first-degree murder, including the lesser-included offenses of
second-degree murder and involuntary manslaughter. However, the
jury found appellant guilty of the remaining three charges,
felony murder, use of a firearm in the commission of a felony,
and possession of a firearm by a convicted felon.
II. FELONY MURDER
In this appeal, we determine whether the evidence was
sufficient to convict appellant of felony murder, in violation
of Code § 18.2-33. That section provides:
The killing of one accidentally, contrary to
the intentions of the parties, while in the
prosecution of some felonious act other than
those specified in §§ 18.2-31 and 18.2-32,
is murder of the second degree and is
punishable by confinement in a state
correctional facility for not less than five
years nor more than forty years.
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Code § 18.2–33 (emphasis added). This statute and its
companion, Code § 18.2-32, defining first degree felony murder, 1
codify the common law doctrine of felony murder. See Heacock v.
Commonwealth, 228 Va. 397, 403, 323 S.E.2d 90, 93 (1984).
The doctrine of felony murder was "developed to elevate to
murder a homicide committed during the course of a felony by
imputing malice to the killing." King v. Commonwealth, 6 Va.
App. 351, 354, 368 S.E.2d 704, 705 (1988). Thus, "[w]here a
person engages in felonious activity and homicide results, the
malice inherent in the original felony provides the malice
necessary to a finding that the homicide was murder." Hickman
v. Commonwealth, 11 Va. App. 369, 371, 398 S.E.2d 698, 699
(1990).
In Doane v. Commonwealth, 218 Va. 500, 237 S.E.2d 797
(1977), the Virginia Supreme Court reversed a defendant's
felony-murder conviction because the Commonwealth failed to
prove a "causal relationship" between the predicate felony of
grand larceny one day and an accidental killing while driving
1
Code § 18.2-32 provides, in part:
Murder, other than capital murder, by
poison, lying in wait, imprisonment,
starving, or by any willful, deliberate, and
premeditated killing, or in the commission
of, or attempt to commit, arson, rape,
forcible sodomy, inanimate or animate object
sexual penetration, robbery, burglary or
abduction, except as provided in § 18.2-31,
is murder of the first degree . . . .
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the stolen car the following day. See id. at 502-03, 237 S.E.2d
at 798. Although the Court recognized that the crime of larceny
is a continuing offense, this "fiction of the common law" would
not "satisfy the requirements of Code § 18.2-33 that the
accidental killing occur[red] while the defendant [was] in the
prosecution of a felonious act." Id. at 502, 237 S.E.2d at 798.
Once the Commonwealth is stripped of
the benefit of the fiction, there is neither
a showing of causal relationship nor a
showing of nexus between the larceny, which
was complete with the defendant's
asportation of the car in Richmond, and the
accidental killing of Mrs. Terry in Smyth
County the following day. Whether that
showing must be one of causal relationship,
or whether a showing of mere nexus will
suffice, is a question which we defer to
another day. 2
Id. at 502-03, 237 S.E.2d at 798-99.
The following year, in Haskell v. Commonwealth, 218 Va.
1033, 243 S.E.2d 477 (1978), the Court adopted the res gestae
doctrine as applied to felony murder and enunciated the
following rule: "[T]he felony-murder statute applies where the
killing is so closely related to the felony in time, place, and
causal connection as to make it a part of the same criminal
enterprise." Id. at 1044, 243 S.E.2d at 483. See also Wooden
v. Commonwealth, 222 Va. 758, 762, 284 S.E.2d 811, 814 (1981)
2
In Heacock, 228 Va. 397, 323 S.E.2d 90, the Court again
declined to elaborate on the degree of causal connection
required under the statute. See id. at 404, 323 S.E.2d at 94
("We do not decide that question here, because it is foreclosed
by evidence which we consider conclusive.").
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("[A]ll of the criminal participants in the initial felony may
be found guilty of the felony-murder of the victim so long as
the homicide was within the res gestae of the initial felony.").
Thus, the rule is well settled that "[n]either
premeditation nor an intent to kill is an element of
felony-murder, but malice is." Wooden, 222 Va. at 762, 284
S.E.2d at 814; see also Spain v. Commonwealth, 7 Va. App. 385,
396, 373 S.E.2d 728, 733 (1988). "[W]hen the homicide is within
the res gestae of the initial felony and emanates therefrom, it
is committed in the perpetration of that felony." King, 6 Va.
App. at 355, 368 S.E.2d at 706; see also Heacock, 228 Va. at
405, 323 S.E.2d at 94; Haskell, 218 Va. at 1041, 243 S.E.2d at
482.
In the instant case, appellant contends that the accidental
killing of Thomas was not within the res gestae of the
underlying felony because no causal connection existed between
the two events. Specifically, he argues that the accidental
shooting was not "a consequence or action which was directly
intended to further the [predicate] felony." King, 6 Va. App.
at 358, 368 S.E.2d at 708. Thus, appellant concludes, the lack
of any nexus between the "status felony" of possession of a
firearm by a convicted felon and the accidental shooting
requires reversal of his conviction.
No reported Virginia cases have addressed the felony-murder
doctrine when the predicate offense was possession of a firearm
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by a convicted felon. However, our decisions in King, 6 Va.
App. 351, 368 S.E.2d 704, and Davis v. Commonwealth, 12 Va. App.
408, 404 S.E.2d 377 (1991), are instructive. In King, we
reversed a conviction for felony murder "because the death was
not caused by an act of the felons in furtherance of the
felony." 6 Va. App. at 353, 368 S.E.2d at 705. There, the
defendant was a pilot of an airplane carrying marijuana into
Virginia. Due to heavy fog, the defendant's companion took
control of the airplane while the defendant attempted to
navigate. However, the airplane crashed into a mountain,
killing the companion. The defendant was convicted of felony
murder based upon the felony of possession of marijuana with
intent to distribute. See id. at 353-54, 368 S.E.2d at 705.
In King, we held that the accidental death did not stem
from the possession or distribution of drugs, but from "fog, low
cloud cover, pilot error, and inexperience," id. at 358, 368
S.E.2d at 708, which was insufficient to sustain the conviction.
[I]f the accidental death, in the absence of
imputed malice, would not have been a
criminal homicide, then the statute does not
elevate it to second degree murder and
impute culpability for the death to a
cofelon [sic]. Moreover, . . . a death
which results not from actions of the felons
nor from acts directly calculated to further
the felony or necessitated by the felony,
but from circumstances coincident to the
felony, is not a death for which a
felony-murder conviction will obtain. To
punish as a murderer, every man who, while
committing a heinous offense, causes death
by pure misadventure, is a course which
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evidently adds nothing to the security of
human life.
Id. at 359, 368 S.E.2d at 708 (internal quotations and citations
omitted). Because the death was not caused by an act of the
defendant in furtherance of or necessitated by the felony, we
reversed his conviction for felony murder. See id.
More recently, we affirmed a conviction for felony murder
in Davis, 12 Va. App. 408, 404 S.E.2d 377, where the defendant,
who had been declared an habitual offender, caused an accidental
death. The accident occurred when the driver was attempting to
elude police in order to "avoid being caught committing the
felonious act of driving after being declared an habitual
offender." Id. at 413, 404 S.E.2d at 380. In applying the res
gestae theory, we held that because the habitual offender was
committing the offense and attempting to escape detection when
the accident occurred, the accident was "'a consequence or
action which was directly intended to further the felony.'" Id.
(quoting King, 6 Va. App. at 358, 368 S.E.2d at 708).
Because "the act of driving recklessly was directly
calculated to further the felonious act of driving after having
been declared an habitual offender," id. at 414, 404 S.E.2d at
380 (emphasis in original), we concluded in Davis that the
homicide caused by the defendant "was within the res gestae of
his felony and emanated from it." Id.
Here, we do not have a case where an
habitual offender was driving carefully and
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an accidental death occurred. Instead, this
case involves an habitual offender who
accidentally killed a person while driving
in a reckless manner in order to avoid being
caught committing his felonious act of
driving after being declared an habitual
offender. The act of driving when forbidden
to do so is not inherently dangerous.
Rather, it is the act of driving while
intoxicated or recklessly that is inherently
dangerous. Consequently, a death caused by
an habitual offender who is operating a
vehicle is not necessarily necessitated by
the commission of the felony of driving when
declared an habitual offender.
Id. at 413, 404 S.E.2d at 380.
Although we found a sufficient causal relationship between
the felony and the accidental killing in Davis, such
circumstances are undeniably absent in the instant case. The
evidence, as found by the jury, failed to prove murder or
manslaughter. In short, the jury found that the death of Thomas
was accidental and but for the prior felony conviction he would
have been held blameless.
This case is analogous to our decision in King. No
evidence produced at trial established a causal connection
between the underlying felony and the accidental killing. Both
the felony-murder statute and our case law require that the
accidental killing occur "while in the prosecution of some
felonious act," Code § 18.2-33 (emphasis added), or "in
furtherance of the felony." King, 6 Va. App. at 353, 368 S.E.2d
at 705 (emphasis added). It is not enough that the killing
occur "during" the felony or "while" it is being committed;
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something more is required than mere coincidence of time and
place. See Haskell, 218 Va. at 1041, 243 S.E.2d at 482 ("[W]hen
the homicide is within the res gestae of the initial felony and
is an emanation thereof, it is committed in the perpetration of
that felony."). Discussing the res gestae principle, Professor
LaFave has explained:
The homicide must be within the res gestae
of the [predicate felony]; this means that
the homicide and the [underlying felony]
must be "closely connected in point of time,
place and causal relation."
* * * * * * *
In short, whether there is a sufficient
causal connection between the felony and the
homicide depends on whether the defendant's
felony dictated his conduct which led to the
homicide. If it did, and the matters of
time and place are not too remote, the
homicide may be "in the commission" of the
felony; but if it did not, it may not be.
Wayne R. LaFave, Criminal Law § 7.5, at 634-36 (1998) (emphasis
added). Thus, "the collateral crime and the homicide must be
integrated and related in a causal way. . . . The death must be
caused by the felonious act. The death need not be in
furtherance of the felony, but the act that caused the death
should be in furtherance of the felony." 40 Am. Jur. 2d
Homicide § 70 (1999) (emphasis added).
We hold that Code § 18.2-33 applies where the initial
felony and the accidental killing are parts of one continuous
transaction and are closely related in point of time, place and
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causal connection. The phrase "in the prosecution" requires
proof that the killing resulted from an act which was an
integral part of the felony or an act in direct furtherance of
or necessitated by the felony. Where the evidence fails to
support a finding that the killing occurred "in the prosecution
of" or "in the furtherance of" the underlying felony, as in the
present case, there is "no basis . . . to find that the
accidental death was part or a result of the criminal
enterprise." King, 6 Va. App. at 358, 368 S.E.2d at 708.
Several of our sister states have addressed whether the
"status offense" of possession of a firearm by a convicted felon
may serve as the predicate felony for felony murder. Some
jurisdictions require that the underlying felony be "inherently
dangerous to human life" and use two different approaches to
this analysis. Under the abstract approach, the elements of the
"status offense" are considered in the abstract and the factual
circumstances of the felony are not considered. See, e.g.,
People v. Satchell, 489 P.2d 1361 (Cal. 1971) (holding that the
unlawful possession of a firearm by a convicted felon, when
viewed in the abstract, is not a felony inherently dangerous to
human life and will not support a felony-murder charge); State
v. Underwood, 615 P.2d 153 (Kan. 1980) ("The unlawful possession
of a firearm . . . when considered in the abstract is not a
felony inherently dangerous to human life and will not sustain a
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conviction for murder in the first degree under the felony
murder rule.").
A second view analyzes the particular circumstances of each
case to determine whether the possession of a firearm by a
convicted felon is inherently dangerous. Compare Ford v. State,
423 S.E.2d 255, 256 (Ga. 1992) (reversing felony murder
conviction because the "status felony, . . . the possession of a
firearm by a previously convicted felon, is not inherently
dangerous"), with Metts v. State, 511 S.E.2d 508, 510 (Ga.
1999) (affirming felony-murder conviction because the
defendant's "possession of the firearm was dangerous, and
life-threatening, and had 'an undeniable connection to the
homicide . . . .'").
We decline to adopt a per se rule that the "status offense"
of possession of a firearm by a convicted felon may never serve
as the underlying felony for felony murder, or that only
"inherently dangerous" felonies may serve as the predicate for
felony murder. Indeed, the Court in Heacock rejected a similar
argument, stating the following:
Yet, Heacock maintains that he is not
criminally responsible for Wilson's death
because, he says, that was not a foreseeable
consequence of the criminal conduct charged
in the indictment. "[A]pplication of the
[felony-murder] rule to felonies not
foreseeably dangerous," he reasons, "would
be unsound analytically, because there is no
logical basis for imputing malice from the
intent to commit a felony not dangerous to
human life." But nothing in [Code]
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§ 18.2-33 limits its scope to such felonies;
rather, that statute encompasses all
felonious acts except capital murder and the
several crimes particularly named in [Code]
§ 18.2-32.
Heacock, 228 Va. at 404, 323 S.E.2d at 94 (emphasis added).
Because the evidence was insufficient to establish that the
accidental killing of Thomas occurred in furtherance of the
charge of possession of a firearm by a convicted felon, the
killing cannot be considered within the res gestae of the
underlying felony. Accordingly, we reverse and dismiss
appellant's convictions for felony murder, in violation of Code
§ 18.2-33, and use of a firearm in the commission of felony
murder, in violation of Code § 18.2-53.1.
II. EX POST FACTO APPLICATION
Next, appellant contends that when he was adjudicated
delinquent in juvenile court in 1994, his convictions did not
carry any additional consequences as proscribed by Code
§ 16.1-308. However, when the legislature amended that statute
in 1996, appellant asserts, he was no longer afforded the
juvenile protections of Code § 16.1-308 and the use of his
juvenile adjudications to establish that he was a convicted
felon constituted an impermissible ex post facto application of
the law. Essentially, appellant argues that his protected
status under Code § 16.1-308 cannot be modified by a later
legislative enactment. We disagree.
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The United States Constitution, Article 1, § 10, and the
Virginia Constitution, Article 1, § 9, prohibit the Commonwealth
from enacting ex post facto laws. This constitutional
prohibition applies only to statutes that impose penalties, see
Collins v. Youngblood, 497 U.S. 37, 41 (1990), or where the
challenged change in the law "alters the definition of criminal
conduct." California Dept. of Corrections v. Morales, 514 U.S.
499, 506 n.3 (1995). An ex post facto law has been defined as:
"any statute which punished as a crime an
act previously committed, which was innocent
when done; which makes more burdensome the
punishment for a crime, after its
commission; or which deprives one charged
with crime of any defense available
according to law at the time when the act
was committed."
Collins, 497 U.S. at 42 (quoting Beazell v. Ohio, 269 U.S. 167,
169-70 (1925)). "The mark of an ex post facto law is the
imposition of what can fairly be designated punishment for past
acts." De Veau v. Braisted, 363 U.S. 144, 160 (1960). If "the
restriction of the individual comes about as a relevant incident
to a regulation of a present situation," the law is not ex post
facto. Id.
In the present case, when appellant pled guilty to the two
juvenile charges on January 21, 1994, Code § 16.1-308 provided:
A finding of guilty on a petition charging
delinquency under the provisions of this law
shall not operate to impose any disabilities
ordinarily imposed by conviction for a
crime, nor shall any such finding operate to
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disqualify the child for employment by any
state or local government agency.
In 1996, the legislature amended Code § 16.1-308 to provide:
Except as otherwise provided by law for a
juvenile found guilty of a felony in circuit
court whose case is disposed of in the same
manner as an adult criminal case, a finding
of guilty on a petition charging delinquency
under the provisions of this law shall not
operate to impose any civil disabilities
ordinarily imposed by conviction for a
crime, nor shall any such finding operate to
disqualify the child for employment by any
state or local government agency.
(Amendment in emphasis).
While the 1996 amendments constituted a change in the law,
they cannot be considered either an alteration to any criminal
conduct prohibited, see Morales, 514 U.S. at 506 n.3, or a
punishment for past acts committed. See De Veau, 363 U.S. at
160. To the contrary, the amendments excepted, or exempted, a
class of individuals from the statute's protection (i.e.,
"juvenile[s] found guilty of a felony in circuit court") and
clarified the nature of disabilities prohibited upon a finding
of guilty (i.e., "any civil disabilities"). Although these
changes affected the scope of collateral disabilities for a
class of convicted juveniles, they were not intended to punish
the juvenile's past conduct.
Nevertheless, appellant argues that his firearm conviction
should be reversed because he pled guilty in juvenile court with
an understanding that under Code § 16.1-308 he would suffer no
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additional consequence for his conduct, while he is arguably
being punished for that conduct under Code § 18.2-308.2.
However, we have recognized that Code § 18.2-308.2 "does not
criminalize an act previously committed," nor does it impose
"punishment" for the underlying conduct. Dodson v.
Commonwealth, 23 Va. App. 286, 295, 476 S.E.2d 512, 516 (1996)
(holding that Code § 18.2-308.2 is not an unconstitutional ex
post facto law). Specifically, Code § 18.2-308.2 provides:
It shall be unlawful for (i) any person who
has been convicted of a felony or (ii) any
person under the age of twenty-nine who was
found guilty as a juvenile fourteen years of
age or older at the time of the offense of a
delinquent act which would be a felony if
committed by an adult, . . . to knowingly
and intentionally possess or transport any
firearm . . . .
In the instant case, appellant's conviction under Code
§ 18.2-308.2 stemmed from his unlawful possession of a firearm,
an event that occurred in October 1998. It is this conduct that
Code § 18.2-308.2 seeks to prohibit and the record demonstrates
that appellant knew he was not "supposed to have the gun" at the
time of the accidental shooting. Code § 18.2-308.2 was in
existence at the time appellant committed the crimes for which
he was tried in juvenile court, and he cannot now complain that
the firearm statute does not apply to him.
Additionally, any ambiguity between the juvenile
protections under Code § 16.1-308 and possession of a firearm by
certain persons convicted as juveniles under Code § 18.2-308.2
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must be resolved in favor of Code § 18.2-308.2. "[W]hen one
statute speaks to a subject in a general way and another deals
with a part of the same subject in a more specific manner, the
two should be harmonized, if possible, and where they conflict
the latter prevails." Thomas v. Commonwealth, 244 Va. 1, 23,
419 S.E.2d 606, 618 (1992) (citation omitted). Here, Code
§ 18.2-308.2, which applies to adult felons and juveniles of a
certain age convicted of acts that would be felonies for adults,
is the more specific statute and prevails over the general
statute concerning collateral disabilities for convicted
juveniles.
III. CONCLUSION
We hold that the evidence is insufficient to establish a
causal connection between the accidental killing and the
underlying felony and, therefore, reverse and dismiss
appellant's convictions for felony murder and use of a firearm
in the commission of felony murder. However, because we find no
ex post facto application of Code § 16.1-308, we affirm
appellant's conviction for possession of a firearm by a
convicted felon.
Affirmed, in part, and
reversed, in part.
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