COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Salem, Virginia
CARL HENRY DILLARD
OPINION BY
v. Record No. 1938-97-3 JUDGE JERE M. H. WILLIS, JR.
SEPTEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
Roger Dalton, Senior Assistant Public
Defender (Office of the Public Defender, on
briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his conviction of possession of a sawed-off
shotgun, in violation of Code § 18.2-300(B), Carl Henry Dillard
contends that the evidence failed to prove one of the statutorily
required elements defining "sawed-off shotgun" and was, thus,
insufficient as a matter of law to support his conviction. We
reverse and remand.
I. BACKGROUND
Code § 18.2-300(B) provides, in pertinent part:
Possession or use of a "sawed-off"
shotgun . . . , except as permitted by this
article and official use by those persons
permitted possession by § 18.2-303, is a
Class 4 felony.
Code § 18.2-299 defines "sawed-off shotgun" as follows:
"'Sawed-off' shotgun" applies to any weapon,
loaded or unloaded, originally designed as a
shoulder weapon, utilizing a self-contained
cartridge from which a number of ball shot
pellets or projectiles may be fired
simultaneously from a smooth or rifled bore
by a single function of the firing device and
which has a barrel length of less than
eighteen inches for smooth bore weapons and
sixteen inches for rifled weapons. Weapons
of less than .225 caliber shall not be
included.
(Emphasis added).
On July 13, 1996, Roanoke City Police Sergeant K.L. Wood
responded to a report of gunfire and discovered Dillard in a
prone position pointing a shotgun at two police officers. Wood
secured the shotgun and arrested Dillard.
The case was tried without a jury. At trial, the weapon was
described as a "Stevens, model 67, series E, 12 gauge shotgun,"
originally designed as a shoulder weapon, "shoot[ing] a
self-contained shotgun pellet," with a smooth bore and a barrel
length of 16.5 inches. At the conclusion of the Commonwealth's
case-in-chief, Dillard moved to strike the evidence on the ground
that the Commonwealth had failed to prove the shotgun was at
least .225 caliber. The trial court denied this motion, ruling
that the .225 caliber requirement is an affirmative defense.
During closing argument, Dillard renewed the motion. The trial
court reiterated its ruling and found Dillard guilty of
possession of a sawed-off shotgun.
Dillard contends that the statutory definition of a
sawed-off shotgun required the Commonwealth to prove that the
weapon he possessed was at least .225 caliber and that the
evidence failed as a matter of law to prove that element. The
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Commonwealth contends that the first sentence of the definition
of "sawed-off shotgun" contained in Code § 18.2-299 defines the
weapons covered and that the second sentence, containing the .225
caliber criterion, defines an affirmative defense. The
Commonwealth further contends that even were it required to prove
that the weapon was at least .225 caliber, the evidence proved
that element.
We hold that the .225 caliber criterion is an element of the
definition of a "sawed-off shotgun" and, as such, must be proved
by the Commonwealth. However, we find that the evidence was not
insufficient as a matter of law to prove this element. Because
the trial court did not consider the sufficiency of the evidence
to prove this element, we reverse Dillard's conviction and remand
the case to the trial court.
II. AFFIRMATIVE DEFENSE
Code §§ 18.2-299 and 18.2-300(B) do not state specifically
whether the .225 caliber requirement is an element of the
offense. While we construe penal statutes strictly against the
Commonwealth, "a statute should be read to give reasonable effect
to the words used 'and to promote the ability of the enactment to
remedy the mischief at which it is directed.'" Mayhew v.
Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995)
(citations omitted). Thus, we consider whether the exclusion of
weapons of less than .225 caliber from the statutory definition
of a sawed-off shotgun constitutes a negative element of that
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definition, which the Commonwealth must disprove, or an
affirmative defense, which an accused may assert to defeat the
prosecution's prima facie case.
In Mayhew, we identified four factors to be considered in
determining whether specific limiting language is an element of
an offense or an affirmative defense:
"[1] [T]he wording of the exception and its
role in relation to the other words of the
statute; [2] whether in light of the
situation prompting legislative action, the
exception is essential to complete the
general prohibition intended; [3] whether the
exception makes an excuse or justification
for what would otherwise be criminal conduct,
i.e., sets forth an affirmative defense; and
[4] whether the matter is peculiarly within
the knowledge of the defendant."
Id. at 490, 458 S.E.2d at 308 (quoting Commonwealth v. Stoffan,
323 A.2d 318, 324 (Pa. Super. Ct. 1974)). Considering these
factors and viewing the language and structure of the statute in
relation to the "'Sawed-Off' Shotgun and 'Sawed-Off' Rifle Act"
(Act) as a whole, we conclude that the .225 caliber requirement
is a negative element of the definition of a sawed-off shotgun.
(1) Code § 18.2-300(B) defines the crime: possession or use
of a sawed-off shotgun as defined in Code § 18.2-299. Code
§ 18.2-299 states, inter alia, that: "Weapons of less than .225
caliber shall not be included." (Emphasis added). The statute,
as originally enacted in 1968, contained this provision.
Although expressed in an unnecessarily bifurcated fashion, the
definition, comprised of two adjoining sentences set apart from
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the other defined terms, is a cohesive unit from which the fact
finder must determine whether a given weapon is a sawed-off
shotgun under the Act. See Rogers v. Commonwealth, 14 Va. App.
774, 776, 418 S.E.2d 727, 728 (1992) ("The barrel length of this
weapon was eleven and one-eighth inches, and its bore was greater
than .225 caliber in diameter. The weapon therefore fell within
the statutory definition of a 'sawed-off shotgun.'").
The second sentence of Code § 18.2-299 excludes from the
definition of "sawed off shotgun" weapons "of less than .225
caliber." Thus, the second sentence, setting forth the .225
caliber requirement, is a part of the statutory definition that
the Commonwealth must prove.
Significantly, Code § 18.2-300(B) also sets forth the
exceptions to the proscribed conduct by the phrase "except as
permitted by this article and official use by those persons
permitted possession by § 18.2-303." Code § 18.2-303, entitled
"What article does not apply to," provides for the use of
sawed-off shotguns by military and law enforcement personnel, and
Code § 18.2-303.1, entitled, "What article does not prohibit,"
sets forth exceptions for civilian possession of a sawed-off
shotgun. See Rogers, 14 Va. App. at 776, 418 S.E.2d at 728 ("The
only exceptions to the proscription of civilian possession of
sawed-off shotguns are the defenses set forth in Code
§ 18.2-303.1.").
(2) While "the broad sweep of the [Act] reflects a
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legislative determination that sawed-off shotguns are highly
dangerous and have no legitimate sporting use," id., the
legislature concluded that weapons of less than .225 caliber do
not warrant categorization as a "'sawed-off' shotgun." In
setting forth the general prohibition, the Act states in detail
which weapons are prohibited, providing different proscribed
lengths for smooth and rifled bore weapons. Such precision
illustrates the legislature's intention that the fact finder
examine each portion of the definition to determine whether a
particular weapon falls within the purview of the Act.
(3) The .225 caliber requirement does not "'make[] an excuse
or justification for what would otherwise be criminal conduct.'"
Mayhew, 20 Va. App. at 490, 458 S.E.2d at 308 (quoting Stoffan,
323 A.2d at 324). No person can be convicted for conduct
proscribed by the Act, i.e. possession of a sawed-off shotgun, or
be expected to present an affirmative defense to such conduct,
unless he first possesses a shotgun meeting the definition set
forth in Code § 18.2-299.
(4) The caliber of the shotgun is not a matter "'peculiarly
within the knowledge of the defendant.'" Id. (quoting Stoffan,
323 A.2d at 324). The caliber of the shotgun is easily
determined.
Accordingly, the trial court erred in ruling that the
limiting language contained in the definition constituted an
affirmative defense. In prosecutions for possession of a
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sawed-off shotgun under Code § 18.2-300, the Commonwealth must
prove that the subject weapon falls within the statutory
definition set forth in Code § 18.2-299, including the
requirement that it be not less than .225 caliber.
III. SUFFICIENCY OF THE EVIDENCE
A. JUDICIAL NOTICE
The Commonwealth contends that the trial court could have
taken judicial notice that a twelve gauge shotgun, such as the
one possessed by Dillard, has a caliber greater than .225 and
that the court's authority to take such notice provided proof of
the fact. We disagree.
The trial court did not actually take judicial notice of the
relative dimensions of twelve gauge and .225 caliber. Rather, it
ruled that the Commonwealth was not required to prove that the
shotgun was at least .225 caliber. While a trial court need not
intone the words "judicial notice" in order to notice a fact, the
evidence, the arguments of the parties and the statements of the
trial court must demonstrate clearly that the trial court has
taken judicial notice of the fact before a party may rely upon
such notice on appeal. See Keesee v. Commonwealth, 216 Va. 174,
175, 217 S.E.2d 808, 810 (1975) (per curiam); Sutherland v.
Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295, 298 (1988).
Because the trial court did not take judicial notice that the
shotgun met the .225 caliber requirement, we cannot uphold the
conviction on that basis.
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B. SUFFICIENCY OF THE EVIDENCE
Dillard contends that the Commonwealth failed, as a matter
of law, to prove that the shotgun he possessed was at least .225
caliber. We disagree.
The issue is whether proof that a shotgun is twelve gauge
is, ipso facto, proof that it is not less than .225 caliber. The
terms "gauge" and "caliber" are expressions of standard
measurements used commonly in regard to firearms and have
customary and accepted meanings. 1 These uniform terms are
susceptible of ready verification by resort to standard
references, such as dictionaries. While the specifications are
based on different methods of calculation and are expressed in
different terms, they are, nonetheless, readily convertible. For
example, the barrel of a twelve gauge shotgun has an interior
diameter of approximately .729 inches -- a measurement greater
than .225 caliber. Webster's Third New International Dictionary
of the English Language Unabridged 940 (1961).
We need not stray from the record on appeal to conclude that
Dillard's shotgun met the .225 caliber requirement. Viewing "the
evidence in the light most favorable to the Commonwealth,
1
"Caliber" is defined as "the diameter of a bore of a gun
usu[ally] expressed in modern U. S. and British usage in
hundredths or thousandths of an inch and typically written as a
decimal fraction." Webster's New Collegiate Dictionary 157
(1977). "Gauge" is defined as "the size of a shotgun expressed
as the number in a pound of round lead balls of a size to just
fit into the barrel." Webster's Third New International
Dictionary of the English Language Unabridged 940 (1961).
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granting to it all reasonable inferences fairly deducible
therefrom," Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987), we find the evidence sufficient to prove
that the shotgun was not less than .225 caliber. The
Commonwealth proved that Dillard possessed a twelve gauge
shotgun. Because a twelve gauge shotgun has a caliber greater
than .225, proof that the shotgun was twelve gauge was sufficient
to prove that it was greater than .225 caliber.
IV. CONCLUSION
By ruling that the .225 caliber criterion defined an
affirmative defense, the trial court reversed the burden of proof
with respect to that issue. Thus, it did not address the
sufficiency of the Commonwealth's proof regarding that issue and
did not find that the Commonwealth had proved that element beyond
a reasonable doubt. Accordingly, we reverse the judgment of the
trial court and remand this case to the trial court for retrial
on all issues, if the Commonwealth be so advised.
Reversed and remanded.
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