Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
SHAKA AMIR FARRAKHAN
v. Record No. 060252 OPINION BY JUSTICE DONALD W. LEMONS
January 12, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Virginia Code § 18.2-308(A) provides in part that it is
unlawful for "any person" to carry "about his person, hidden
from common observation . . . any dirk, bowie knife,
switchblade knife, ballistic knife, machete, razor" or "any
weapon of like kind as those enumerated in this subsection."
A first offense violation of this code provision is a Class 1
misdemeanor. Further, Code § 18.2-308.2 provides that it is a
Class 6 felony for a previously convicted felon "to knowingly
and intentionally carry about his person, hidden from common
observation, any weapon described in subsection A of § 18.2-
308." In this appeal, we consider whether the Court of
Appeals erred in holding that the knife carried by the
defendant was a "weapon of like kind" under Code § 18.2-
308(A).
I. Facts and Proceedings Below
On the morning of January 8, 2004, Shaka Amir Farrakhan
("Farrakhan") entered a women's furnishings store. While
Farrakhan looked at women's boots, the store manager "walked
to the front door, turned [her] back to the front door and
started facing inside of the store." Farrakhan selected two
shoe boxes and began to walk towards the front door. Seeing
the store manager standing at the front of the store,
Farrakhan commented: "Oh, look. You're over here waiting for
me."
Farrakhan started to leave the store, and the store
manager asked: "Sir, can I get my boots back, please?" At
some point either before or after the store manager's
question, Farrakhan "pulled out a knife from inside of his
jacket." The store manager testified that it looked like a
kitchen knife. Farrakhan jabbed the knife toward the store
manager stating: "[G]et the fuck out of my way." The store
manager then backed away from Farrakhan. Farrakhan exited the
store with the boots, and the store manager "ran to call 911."
After leaving the store, Farrakhan was apprehended by police.
A knife was recovered from the sidewalk where the police had
pursued Farrakhan.
Farrakhan was charged with one count of robbery and one
count of possession of a concealed weapon "described in
Virginia Code § 18.2-308A" "having previously been convicted
of a felony offense." In the bench trial, upon the conclusion
of the Commonwealth's case-in-chief and again at the
conclusion of the presentation of all the evidence, Farrakhan
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moved to strike the concealed weapon charge because he
maintained that the knife was not enumerated in Code § 18.2-
308(A) or a "weapon of like kind." The trial court found
Farrakhan guilty of robbery* and possession of a concealed
weapon by a felon. The trial court observed that the knife
used by Farrakhan was "not a pen knife or a pocket knife or
something else," but was a "kitchen knife" with a "long, thin
blade."
Farrakhan appealed to the Court of Appeals, where his
conviction was affirmed. Farrakhan v. Commonwealth, Record
No. 1804-04-4 (November 29, 2005). Farrakhan appeals to this
Court upon one assignment of error:
The Court of Appeals erred in upholding the
erroneous rulings of the trial court in not
granting Defendant's motion to strike and in
finding the evidence sufficient to prove
beyond a reasonable doubt that Defendant was
guilty of possessing a concealed weapon by a
convicted felon because the kitchen knife at
issue is not a "weapon of like kind" for the
purposes of VA CODE § 18.2-308(A).
II. Analysis
The construction of a statute is a question of law which
we review de novo upon appeal. Dowling v. Rowan, 270 Va. 510,
519, 621 S.E.2d 397, 401 (2005). Code § 18.2-308(A) is not a
model of clarity. The interpretative history of the phrase
*
Farrakhan's conviction upon the charge of robbery is not
before us on appeal.
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"weapon of like kind" in Code § 18.2-308(A) has proven to be
problematic to trial and appellate courts of the Commonwealth.
For example, in Ricks v. Commonwealth, 27 Va. App. 442, 445,
499 S.E.2d 575, 576 (1998), the Court of Appeals held that
"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." Two years later in
Delcid v. Commonwealth, 32 Va. App. 14, 18, 526 S.E.2d 273,
275 (2000), the Court of Appeals held that a "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." In 2005, the Court of
Appeals in Ohin v. Commonwealth, 47 Va. App. 194, 199, 622
S.E.2d 784, 786 (2005), focused upon "a knife's weapon-like
properties" and held that "[a] 'weapon of like kind' includes
a knife that, while not possessing the exact physical
properties of the enumerated knives, has the characteristics
of a fighting knife just the same." The Court of Appeals
added "[t]his focus on a knife's weapon-like properties
'excludes from concealed weapons statutes innocuous household
and industrial knives which may be carried for legitimate
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purposes.' " Id. Additionally, the Court of Appeals held in
this case that:
While nominally described as a "kitchen knife,"
the knife when viewed is more akin to a
butcher's knife. It is 12 3/4 inches long with
a sharp 7 3/4 inch blade that is finely honed
and has a sharp point. It possesses, as
discussed in Delcid, "unquestionable utility as
a stabbing weapon." This was the threat posed
by appellant.
In considering whether a knife is a
"weapon of like kind" we look not only to the
appearance of the instrument, but also to the
purpose for which it was employed and the
circumstances surrounding its use.
Farrakhan v. Commonwealth, Record No. 1804-04-4, slip op. at
7-8 (November 29, 2005) (internal citation omitted).
In accordance with the principles of statutory
construction of penal statutes, a court must not add to the
words of the statute nor ignore the words of the statute and
must strictly construe the statute and limit its application
to cases falling clearly within the statute. Turner v.
Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).
Additionally, it is a "settled principle of statutory
construction that every part of a statute is presumed to have
some effect and no part will be considered meaningless unless
absolutely necessary." Hubbard v. Henrico Ltd. P'ship, 255
Va. 335, 340, 497 S.E.2d 335, 338 (1998). The phrase "weapon
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of like kind" in Code § 18.2-308(A) must be interpreted
consistent with these principles.
Code § 18.2-308(A) includes numerous enumerated items,
some of which are bladed, such as a dirk, bowie knife,
switchblade knife, ballistic knife, machete, razor, and a
"disc" or "throwing star" or "oriental dart" "having at least
two points or pointed blades." Some enumerated items are
without blades such as a slingshot, metal knucks, black jack,
nun chuck, or fighting chain. Some enumerated items are
designed for fighting purposes such as a dirk, bowie knife, or
switchblade knife. Other enumerated items are not designed
for fighting purposes, such as a machete or a razor, but
unfortunately are now commonly understood to be "weapons."
If the bladed item in question meets the definition of an
enumerated item within Code § 18.2-308(A), the evidence is
clearly sufficient for a conviction under the statute.
Additionally, if the bladed item is not enumerated,
concealment of the item may be proscribed by Code § 18.2-
308(A) if it is a "weapon of like kind." However, before
examination of similar physical characteristics to enumerated
items, the item in question must first be a "weapon."
Clearly, the General Assembly did not intend all bladed
items to fall within the proscription of Code § 18.2-308(A).
The knife possessed by Farrakhan is an ordinary kitchen knife
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with a blade sharpened on one side and a handle below. If a
chef concealed the same ordinary kitchen knife and carried it
to a restaurant, surely it was not the intention of the
legislature to criminalize such conduct. The same difficulty
occurs with other ordinary items as well. For example, does
the office worker who purchases a letter opener and "conceals"
it in the bag provided by the store violate the statute
because of the item's resemblance to a "dirk?"
Because an offense under Code § 18.2-308(A) is
"possessory" in nature, it is committed upon concealment.
Subsequent use or circumstances may not be considered in the
definitional analysis of "weapon." Because we must strictly
construe a penal statute, we hold that in order to be a
"weapon" within the definition of "weapon of like kind," the
item must be designed for fighting purposes or commonly
understood to be a "weapon." Upon establishing that the item
in question is a "weapon," the analysis continues to determine
if the item possesses such similar characteristics to the
enumerated items in the Code § 18.2-308(A) such that its
concealment is prohibited.
We hold that the kitchen knife possessed by Farrakhan is
not a "weapon," because it is not designed for fighting
purposes nor is it commonly understood to be a "weapon."
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Consequently, it is unnecessary in this case to compare its
physical characteristics to the enumerated items.
We are mindful that a kitchen knife is a potentially
dangerous object, particularly in the hands of a person with
criminal intent, but so also is an ordinary pocket knife or a
letter opener. Here we are concerned with what is proscribed
by statute as unlawful not simply what may be dangerous. We
are compelled to interpret this statute in accordance with the
principles of statutory construction recited herein.
Conclusion
We will reverse the judgment of the Court of Appeals and
vacate the defendant's conviction for possession of a
concealed weapon by a felon under Code § 18.2-308(A).
Reversed and vacated.
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