McMillan v. Commonwealth

BEALES, J.,

dissenting.

I find that I must respectfully disagree with the majority opinion, as I believe the trial court had sufficient evidence before it to find that the knife riveted to appellant’s car door was “a weapon of like kind” under Code § 18.2-308(A). In reaching this conclusion, I tend to agree with Judge Humphreys’s analysis in his dissent to the extent that the knife here is “a weapon of like kind” to a bowie knife. In addition, I agree with the portion of Judge Kelsey’s dissent that distinguishes Farrakhan v. Commonwealth, 273 Va. 177, 639 S.E.2d *417227 (2007), from the circumstances presented by this case, particularly as Farrakhan only indicated an intent to use the kitchen knife as a weapon after he removed it from its place of concealment, id. at 180, 689 S.E.2d at 229, whereas here, in contrast, McMillan admitted that he intended to use his rather menacing knife as a weapon for his protection when he concealed it in his vehicle. While I agree with the majority opinion that this admission alone is certainly not dispositive of whether the knife is actually a weapon, appellant’s admission is a probative factor to consider when determining if the evidence is sufficient to prove that the knife is a weapon. Therefore, when appellant’s admission is considered together with the other evidence in this case, I would find that the evidence is sufficient to prove the knife is a weapon.