COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
JONATHAN ANTONIO WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 2584-96-1 JUDGE JAMES W. BENTON, JR.
FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Norman Olitsky, Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
John K. Byrum, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Williams was convicted in a bench trial of robbery and the
use of a firearm in the commission of robbery. No issues are
raised on this appeal concerning those convictions. In the same
proceeding, the trial judge found Williams, a previously
convicted felon, guilty of possessing a firearm in violation of
Code § 18.2-308.2. This appeal arises from that conviction.
Williams argues that the evidence was insufficient to prove that
he in fact possessed a firearm. We agree and reverse his
conviction.
I.
When a defendant challenges the sufficiency of the evidence,
we examine the evidence in the light most favorable to the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). So viewed, the evidence
proved that on November 22, 1995 at approximately 3:00 p.m.
Zayvun Moore, a sales representative for a wholesaler, made a
delivery to a convenience store located in the City of
Portsmouth. As he was leaving the store and heading back to his
truck, Williams approached him from behind and said, "Don't make
this hard on yourself." Williams then demanded, "Give me all
your money." When Moore said that he did not have any money,
Williams "pulled [a] gun out" of his jacket pocket and again
demanded Moore's money. Williams pointed the gun at Moore's
midsection.
When asked to describe the gun, Moore testified that the gun
was "dark-colored" and stated "I'm not a gun person." On cross,
Moore again stated that the gun was dark colored but admitted, "I
do not know anything about guns." When asked "Could you say if
it was a real gun or not?" Moore responded, "No." Moore
testified that he gave Williams money because he thought the gun
was real.
The trial judge denied Williams' motion to strike and
convicted Williams of violating Code § 18.2-308.2.
II.
Williams contends that the evidence was insufficient to
support his conviction because the Commonwealth failed to prove
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that he actually possessed a "firearm." We agree.
Code § 18.2-308.2 provides that "it shall be unlawful
for . . . any person was has been convicted of a felony . . . to
knowingly and intentionally possess . . . any firearm." As with
any essential element of a criminal offense, the Commonwealth has
the burden of proving beyond a reasonable doubt that the object
possessed by a person charged with a violation of Code
§ 18.2-308.2 was actually a "firearm." See Dowdy v.
Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979).
In Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615
(1992), aff'd en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993),
this Court stated the following:
Code § 18.2-308.2 does not define "firearm."
The legislature has assigned various
meanings to the term "firearm" in other
sections of Title 18.2. Traditionally, a
firearm is considered to be any weapon "from
which a shot is discharged by gunpowder."
Webster's Third International Dictionary 854
(1981). However, when the meaning of a word
in a statute may have a special or limited
meaning, the meaning of the word must be
construed in a manner that gives full effect
to the legislative intent embodied in the
entire statutory enactment. Therefore, in
determining the meaning of "firearm" as used
in Code § 18.2-308.2, we look to the meaning
of that term in other parts of Title 18.2 and
to the statutory scheme of Title 18.2,
particularly the purpose of Code
§ 18.2-308.2, to ascertain the meaning that
can be reconciled with other parts of the
act. Furthermore, because Code § 18.2-308.2
is a criminal statute, it must be construed
strictly against the Commonwealth and in
favor of the accused. When Code § 18.2-308.2
is so construed, the word "firearm" in a
statute designed to restrict possessing or
transporting a specific class of dangerous
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weapons cannot be read to encompass a BB
handgun, but rather is intended to include
"firearms" which are devices that propel a
projectile by an explosion or discharge of
gunpowder.
16 Va. App. at 356, 429 S.E.2d at 615-16 (citations and footnote
omitted). Thus, we held in Jones that "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." Id. at 357-58, 429 S.E.2d at 617.
The Commonwealth must prove "beyond a reasonable doubt" that
the object was, in fact, a firearm. Dowdy, 220 Va. at 116, 255
S.E.2d at 508. Moore's testimony clearly proved that he was
intimidated by the object that had the appearance of a gun.
However, his testimony that he could not say whether the object
"was a real gun or not" leaves uncertain whether Williams
possessed a toy or an actual gun. Moore admitted that he "was
not a gun person." From Moore's testimony, the trier of fact
could not infer beyond a reasonable doubt that the device was
indeed a "real gun."
Therefore, we reverse Williams' conviction.
Reversed and dismissed.
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