Ricks v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia

JIMMY RICKS
OPINION BY
v. Record No. 0929-97-2 JUDGE JAMES W. BENTON, JR.
JUNE 2, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.

Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

Jimmy Ricks was convicted of carrying a knife "about his

person, hidden from common observation" in violation of Code

§ 18.2-308. He contends the trial judge erred in finding the

knife to be one of the weapons proscribed by the statute. For

the reasons that follow, we reverse the conviction.

I.

The evidence proved that State Police Trooper John Rehme

stopped Ricks for driving erratically and arrested him for

driving while intoxicated. During a search of Ricks' vehicle,

the officer found a knife beneath the driver's seat, a pack of

beer, a shirt, boots, a cooler, and other trash. Ricks told the

officer the knife was his fishing knife. The officer testified

that he found no fishing gear in the vehicle.

The Commonwealth introduced the knife as Commonwealth's
Exhibit 2. The knife has a flexible blade that is four and

one-half inches long and one-half inch wide at its widest point;

it has a plastic handle. Observing the knife, the trial judge

initially stated that "[t]he question is whether or not the knife

[which] has an appearance of being a common kitchen steak knife

is a weapon that is illegal under [Code §] 18.2-308 when carried

in a concealed capacity." After considering the arguments of

counsel, the trial judge concluded the knife was "not something

that was being carried for ordinary purposes." The judge

convicted Ricks of violating Code § 18.2-308 by carrying the

knife concealed under the seat of his truck.
II.

In accordance with generally accepted principles, "penal

statutes must be strictly construed against the Commonwealth and

applied only to those cases clearly falling within the language

of the statute." Branch v. Commonwealth, 14 Va. App. 836, 839,

419 S.E.2d 422, 424 (1992). Code § 18.2-308(A), a penal statute,

provides in pertinent part as follows:
If any person carries about his 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 as those
enumerated in this subsection, he shall be
guilty of a Class 1 misdemeanor.

The statute does not prohibit generally the carrying of

knives hidden from common observation. It designates specific

types of knives, see Code § 18.2-308(A)(ii), and knives "of like

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kind as those enumerated." Code § 18.2-308(A)(v). The knives

specified in Code § 18.2-308(A)(ii) are defined by statute or

have been described by this Court to have their usual meanings.

See Code § 18.2-308(N) (defining "ballistic knife" as "any knife

with a detachable blade that is propelled by a spring-operated

mechanism"); Richards v. Commonwealth, 18 Va. App. 242, 245, 246

n.2, 443 S.E.2d 177, 179, 179 n.2 (1994) (defining "switchblade

knife" as "a knife with a blade that opens automatically by

operation of inertia, gravity, or both upon the release of a

spring mechanism"; defining "'dirk' or weapon of like kind" as

"any stabbing weapon having two sharp edges and a point"; and

defining "'bowie knife' or weapon of like kind" as "any stabbing

weapon having a single sharp edge, a dull or serrated flat edge

and a point"). The Court in Richards also noted that the
legislature "intend[ed] to exclude from [the] concealed weapons

statutes innocuous household and industrial knives." 18 Va. App.

at 246 n.2, 433 S.E.2d at 179 n.2.

After finding that the knife had "an appearance of being a

common kitchen steak knife," the trial judge convicted Ricks

because the knife was "not . . . being carried for ordinary

purposes." The trial judge erroneously relied on the purported

purpose of Ricks' possession of the knife to convict Ricks of the

offense. 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

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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 Ricks did not use the knife for fishing and

believed Ricks 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).
The trial judge observed the knife and found that it

appeared to be an ordinary kitchen steak knife. The knife, which

was introduced into evidence, in fact has the appearance and

characteristics of an ordinary household steak knife. We hold,

therefore, that the evidence was insufficient to support the

conviction. Accordingly, we reverse the conviction and dismiss

the charge.

Reversed and dismissed.

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