COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
ALLEN DELCID
OPINION BY
v. Record No. 1994-98-4 JUDGE JERE M. H. WILLIS, JR.
MARCH 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Robert W. Gookin for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction in a bench trial of carrying
a concealed weapon after having been previously convicted of a
felony, in violation of Code § 18.2-308.2, Allen Delcid contends
that the trial court erred in holding that the knife he carried
fell within the definition of a concealed weapon. See Code
§ 18.2-308(A). Finding no error, we affirm the judgment of the
trial court.
Code § 18.2-308.2(A) provides, in relevant part:
It shall be unlawful for (i) any person
who has been convicted of a felony . . . to
knowingly and intentionally carry about his
person, hidden from common observation, any
weapon described in § 18.2-308 A.
Code § 18.2-308(A) forbids carrying about the person,
hidden from common observation, "any dirk, bowie knife,
switchblade knife, ballistic knife, razor, slingshot, spring
stick, metal knucks, or blackjack; . . . or . . . any weapon of
like kind . . . ." Code § 18.2-308(A).
Upon arresting Delcid, a previously convicted felon, for
another offense, the police discovered upon his person, hidden
from common observation, a "butterfly knife." The knife is not
described in the record. However, it was displayed before the
trial court, was received as an exhibit, and is physically a
part of the record. We have examined it. The knife consists of
a single blade with a two-part hinged handle, which folds to
enclose the blade. A person holding one part of the closed
handle can flip the other part open, leaving the blade exposed
and locked, thus creating a straight-bladed knife approximately
nine inches long. The blade is four inches long, with a sharp
point. One edge of the blade is sharpened. The other is not.
The Commonwealth contended at trial that the knife was a
dirk or a weapon of like kind. In Richards v. Commonwealth, 18
Va. App. 242, 246 n.2, 443 S.E.2d 177, 179 n.2 (1994), we
defined a dirk as "any stabbing weapon, having two sharp edges
and a point, including daggers, short swords, and stilettos."
The trial court ruled that the knife was "a dirk with one side
. . . a one-sided, sharp edge of a dirk [which] falls within the
statute that says any weapon of like kind . . . ." Delcid
argues on appeal that the knife could not be a dirk, because it
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had but one sharp edge and was thus excluded from the definition
of a dirk set forth in Richards.
"The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be
set aside unless it appears from the evidence that the judgment
is plainly wrong or without evidence to support it." Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
"The determination of whether a particular knife falls within
the meaning of a term used in the statute is a question of fact
to be determined by the trier of fact." Richards, 18 Va. App.
at 246 n.2, 443 S.E.2d at 179 n.2.
The knife does not fit the definition of a dirk established
in Richards. Therefore, we must inquire whether it is a "weapon
of like kind." To be so, it must first be a weapon. "Weapon"
is a commonly used word. In construing the statute, we assume,
in the absence of contrary expression, that the legislature
intended that the word be given its usual and accepted meaning.
See Stein v. Commonwealth, 12 Va. App. 65, 69, 402 S.E.2d 238,
241 (1991). Webster's dictionary defines "weapon" thus:
An instrument of offensive or defensive
combat: something to fight with.
Webster's New Collegiate Dictionary 1326 (1977). Common
experience teaches that bladed instruments may be possessed and
used for non-aggressive as well as aggressive purposes. In the
former instance, they are deemed implements; in the latter,
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weapons. Any given bladed instrument may fall into either
category or both, depending on the circumstances and purpose
surrounding its possession and use. Thus, determination whether
a given bladed instrument is an implement or a weapon requires
consideration not only of the physical character of the
instrument itself, but also of the circumstances surrounding its
possession and use.
The knife in question is useful as a weapon of like kind to
a dirk. Its fixed blade, sharp point, and single-sharpened edge
afford unquestionable utility as a stabbing weapon, useful in
the same manner as a dagger, stiletto, or dirk. Furthermore,
when asked by Officer Heimberger whether "he had any weapons on
him," Delcid replied "that he did, he had a knife in his
pocket." The officer then removed from Delcid's pocket the
butterfly knife that is the subject of this case. Officer
Heimberger had come on the scene in response to a call from a
7-11 "for disorderly subjects refusing to leave." Arriving on
the scene, he saw Delcid and another person who matched the
description given in the complaint. Delcid had in his hand two
beers, one of which was open. He discarded the beers upon the
approach of the police car. These circumstances of disorder,
productive of a police complaint, suggest aggressive conduct and
intent. These circumstances, coupled with the physical
characteristics of the knife and Delcid's own acknowledgment of
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it as a weapon, support the trial court's determination that the
knife was a weapon of like kind to a dirk.
In Ricks v. Commonwealth, 27 Va. App. 442, 499 S.E.2d 575
(1998), we held:
The trial judge erroneously relied on the
purported purpose of Ricks' possession of
the knife to convict Ricks of the
offense. . . . [T]he language of the statute
does not provide that the purpose for
carrying the knife is relevant. Rather, the
physical characteristics of the knife
determine whether the knife is a weapon
contemplated by the statute.
Id. at 445, 499 S.E.2d at 576.
As noted in the dissent, a criminal statute must be
strictly construed against the Commonwealth and in favor of the
accused. Thus, carrying concealed a non-weapon does not violate
Code § 18.2-308(A), even though that non-weapon may be "of like
kind" to a dirk. For the offense to be committed, the object
carried concealed must be a weapon. The purpose for which it is
created and employed is a critical distinction between an
implement and a weapon. Thus, while the specific purpose for
which the item is possessed is not itself an element of the
crimes defined by Code §§ 18.2-308(A) and 18.2-308.2, that
purpose is one of the defining characteristics of the item in
question.
Thus, the record supports the trial court's determination
that the knife was a "weapon" described in Code § 18.2-308.2.
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The judgment of the trial court is affirmed.
Affirmed.
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Benton, J., dissenting.
Code § 18.2-308.2 "does not prohibit generally the carrying
of knives hidden from common observation." Ricks v.
Commonwealth, 27 Va. App. 442, 444, 499 S.E.2d 575, 576 (1998).
Rather, by reference to Code § 18.2-308, it proscribes
concealing the following specific kinds of knives: "any dirk,
bowie knife, switchblade knife, ballistic knife, razor . . . or
. . . any weapon of like kind." Code § 18.2-308(A). When we
apply these penal statutes, "[i]t is elementary that . . . [they
are] to be strictly construed against the state and in favor of
the liberty of a citizen." Cox v. Commonwealth, 220 Va. 22, 25,
255 S.E.2d 462, 464 (1979). "Such statutes cannot be extended
by implication or construction, or be made to embrace cases
which are not within their letter and spirit." Berry v. City of
Chesapeake, 209 Va. 525, 526, 165 S.E.2d 291, 292 (1969).
The trial judge "[found] this [knife] is a dirk."
Elaborating, the judge said, "[t]his is a dirk with one
side. . . . I think a one-sided, sharp edge of a dirk falls
within the statute that says a weapon of like kind as those
enumerated." I agree with the majority opinion's description of
the knife as consisting "of a single blade with a two-part
hinged handle, which folds to enclose the blade," and that the
blade has one sharpened edge. Although the majority opinion
concedes the knife does not fit the definition of a dirk, it
concludes "that the knife was a weapon of like kind to a dirk"
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and "[t]he knife in question is useful as a weapon of like kind
to a dirk." I disagree with those conclusions.
In recent opinions, the Supreme Court and this Court have
addressed the definition of a dirk. In Wood v. Henry County
Public Schools, 255 Va. 85, 495 S.E.2d 255 (1998), the Supreme
Court held that "[a] 'dirk' is defined as 'a long
straight-bladed dagger formerly carried [especially] by the
Scottish Highlanders[,] 2. a short sword formerly worn by
British junior naval officers.'" Id. at 95 n.6, 495 S.E.2d at
261 n.6 (citation omitted). That definition is consistent with
our earlier holding that "[a] 'dirk' or weapon of like kind is
any stabbing weapon having two sharp edges and a point,
including daggers, short swords and stilettos." Richards v.
Commonwealth, 18 Va. App. 242, 246 n.2, 443 S.E.2d 177, 179 n.2
(1994).
Neither of these definitions encompasses the knife at
issue, which has a blade that folds into its handle by the
physical effort of the user. The knife at issue in this case
was fit to be carried in a pocket and does not have a fixed
blade. Indeed, the Supreme Court recently held that "a
pocketknife is neither a dirk, bowie knife, switchblade knife,
ballistic knife, nor a weapon of like kind." Wood, 255 Va. at
95, 495 S.E.2d at 261.
The knife at issue, just as any ordinary pocketknife, may
be used for stabbing purposes. That fact, however, is not
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germane to the "letter and spirit" of the statute. Berry, 209
Va. at 526, 165 S.E.2d at 292. To read the statute so broadly
as to apply its proscription to a pocketknife, which, when
opened, may be used to stab, impermissibly extends the statute
by implication and applies it to cases not clearly described by
the language of the statute. See Martin v. Commonwealth, 224
Va. 298, 300, 295 S.E.2d 890, 892 (1982).
I also disagree with the majority's conclusion that other
evidence suggested aggressive conduct and intent sufficient to
support the trial judge's determination that the knife was a
weapon of like kind to a dirk. A mere accusation of disorderly
conduct is not indicative of aggressive conduct or intention to
use a knife as a weapon. The evidence proved that Delcid was
standing outside the store with beer, which he discarded upon
the arrival of the police. The police officer testified that
before he frisked Delcid he asked if "he had any weapons on
him." He said Delcid replied "that he did, he had a knife in
his pocket." Delcid then allowed the officer to take the knife
without any struggle. Delcid "made no threatening remarks,
uttered no words that would reasonably incite a breach of the
peace, [and] made no threatening movements toward the officers."
Ford v. City of Newport News, 23 Va. App. 137, 144, 474 S.E.2d
848, 851 (1996). Further, there is no evidence that Delcid was
ever charged with disorderly conduct.
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The majority also found compelling Delcid's response when
the officer asked if he had a weapon. Neither Delcid's
statement nor the nature of the police call that led to its
discovery is relevant to our inquiry.
Unless a claim is made that a circumstance
specified in Code § 18.2-308(B) (listing
exclusions from coverage) or (C) (exempting
certain individuals from coverage) is
applicable, the language of the statute does
not provide that the purpose for carrying
the knife is relevant. Rather, the physical
characteristics of the knife determine
whether the knife is a weapon contemplated
by the statute. Therefore, even if the
trial judge believed [the accused] did not
use the knife for [a sporting purpose] and
believed [the accused] was not carrying it
"for ordinary purposes," the knife did not
have the physical characteristics of the
weapons specified in Code § 18.2-308(A)(ii)
and, thus, could not be deemed a "weapon of
like kind as those enumerated." Code
§ 18.2-308(A)(v).
Ricks, 27 Va. App. at 445, 499 S.E.2d at 576.
For these reasons, I would reverse the conviction.
Therefore, I dissent.
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