Pruitt v. Com.

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1

JOSEPH CLIFTON PRUITT
OPINION BY
v. Record No. 061701 JUSTICE LAWRENCE L. KOONTZ, JR.
September 14, 2007
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, the sole issue we consider is whether the

evidence was sufficient to convict the defendant of violating

Code § 18.2-308(A) for concealing a weapon “about his person”

as a second offense.

BACKGROUND

Although the principal facts are not in dispute, under

the well-established standard for analyzing a challenge to the

sufficiency of the evidence in a criminal case, we review

those facts in the light most favorable to the Commonwealth,

drawing all reasonable inferences in the Commonwealth’s favor

as the prevailing party at trial. Viney v. Commonwealth, 269

Va. 296, 299, 609 S.E.2d 26, 28 (2005). The judgment of the

trial court will be reversed only upon a showing that it “is

plainly wrong or without evidence to support it.” Code

§ 8.01-680; Viney, 269 Va. at 299, 609 S.E.2d at 28.

1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
 On the morning of October 6, 2004, Joseph Clifton Pruitt

was involved in an automobile accident at the intersection of

South Main Street and the Danville Expressway in the City of

Danville. Pruitt was driving a 1995 Ford Thunderbird and was

on his way to work in Greensboro, North Carolina when another

vehicle pulled out in front of his vehicle, causing a

collision. Prior to the collision, Pruitt was in possession

of a .357 caliber Sig-Sauer pistol that he had placed on the

front passenger seat of his vehicle as he was leaving for

work. Pruitt carried the pistol for personal protection

because he traveled early in the morning and late at night.

As a result of the collision, which caused the airbags in

Pruitt’s vehicle to deploy, the pistol fell off the passenger

seat onto the floor of the vehicle. There, the pistol

remained in full view. Pruitt had been “thrown around” in his

vehicle, had suffered injuries to his knee and wrist, and his

head was bleeding. Believing that his vehicle was damaged to

the extent that it would have to be towed from the accident

scene, Pruitt retrieved the pistol, placed it in the console

compartment between the vehicle’s front seats, and immediately

exited the vehicle. When Officer Clark C. Gagnon of the

Danville City Police, responding to a report of the accident,

arrived on the scene, Pruitt was outside his vehicle with the

doors closed and the windows up.

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 After advising Pruitt that his vehicle would have to be

towed, Officer Gagnon performed an inventory search of the

vehicle pursuant to a written police department policy.

During that search, Gagnon opened the console compartment and

found the pistol Pruitt had placed there. Officer Gagnon then

went to a nearby ambulance where Pruitt was being treated for

his injuries and informed him that he would be charged with

possession of a concealed weapon in violation of Code § 18.2-

308(A).

At a subsequent bench trial held in the Circuit Court of

the City of Danville on March 17, 2005, the Commonwealth

presented evidence to support the charge of a violation of

Code § 18.2-308(A), principally through the testimony of

Officer Gagnon. Without objection from Pruitt, the

Commonwealth also introduced a copy of Pruitt’s 1997

conviction for carrying a concealed weapon. Pruitt testified

on his own behalf and, during cross-examination by the

Commonwealth, he conceded that his prior conviction for

carrying a concealed weapon resulted from his having carried a

pistol in a console compartment of a vehicle.

In arguing to strike the Commonwealth’s evidence and

again in closing argument, Pruitt contended that the evidence

was insufficient to show that he had concealed the pistol

“about his person” as required by Code § 18.2-308(A) because

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he had exited the vehicle immediately upon placing the pistol

in the console compartment. Pruitt contended that his intent

was to secure the weapon so that it would not be in plain view

because he believed that this was the prudent course of

action. The Commonwealth contended that so long as Pruitt

remained in the vicinity of the vehicle, the pistol was

concealed about his person for purposes of Code § 18.2-308(A).

In its summation, the circuit court stated that it

accepted Pruitt’s testimony that the pistol had not been

concealed prior to the accident and his explanation as to why

he had placed the pistol in the console compartment.

Nonetheless, the court found the evidence was sufficient to

convict Pruitt of carrying a concealed weapon. The court

indicated, however, that it would be willing to reconsider the

issue prior to sentencing after receiving a presentence report

and reviewing the applicable case law.

At a sentencing hearing held April 29, 2005, the parties

again briefly addressed the issue whether the evidence showed

that Pruitt had concealed the pistol “about his person.” The

circuit court reiterated that while there were “mitigating

circumstances,” it remained of opinion that the evidence was

sufficient to convict Pruitt of concealing the pistol in

violation of Code § 18.2-308(A). The court sentenced Pruitt

to three years in prison, suspending the entire sentence.

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 Pruitt noted an appeal to the Court of Appeals of

Virginia, which refused his petition for appeal by an

unpublished order. Pruitt v. Commonwealth, Record No. 1135-

05-3 (May 24, 2006). Citing Leith v. Commonwealth, 17 Va.

App. 620, 621-23, 440 S.E.2d 152, 153-54 (1994) and Watson v.

Commonwealth, 17 Va. App. 124, 127, 435 S.E.2d 428, 430

(1993), the Court of Appeals found that “[f]rom his position

next to the driver’s door, [Pruitt] could have easily obtained

his gun from the console. This evidence supported the trial

judge’s finding that the weapon was concealed ‘about the

person’ within the meaning of Code § 18.2-308.” Id.

Following Pruitt’s application for a review by a three-judge

panel of the Court of Appeals, the petition was again refused

for the reasons stated in the Court’s prior order. Pruitt v.

Commonwealth, Record No. 1135-05-3 (August 11, 2006). We

awarded Pruitt this appeal.

DISCUSSION

In relevant part, Code § 18.2-308(A) provides that:

If any person carries about his person, hidden
from common observation . . . any pistol . . . he
shall be guilty of a Class 1 misdemeanor. A second
violation of this section . . . shall be punishable
as a Class 6 felony.

Pruitt contends that the circuit court and the Court of

Appeals both erred in concluding that he had concealed his

pistol in violation of Code § 18.2-308(A) because, by

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immediately exiting his vehicle after placing his pistol in

the console compartment, that weapon was never “about his

person” as required by the statute. This is so, he maintains,

because this Court has held in prior cases interpreting the

phrase “about his person” that a weapon must be “so connected

with the person as to be readily accessible for use or

surprise, if desired.” Sutherland v. Commonwealth, 109 Va.

834, 835, 65 S.E. 15, 15 (1909); accord Schaaf v.

Commonwealth, 220 Va. 429, 430, 258 S.E.2d 574, 574-75 (1979).

Pruitt further asserts that the particular facts in this case

support his contention that the pistol was not readily

accessible to him and, thus, distinguish the present case from

the cases cited by the Court of Appeals where weapons also

were concealed within vehicles. See, e.g., Leith, 17 Va. App.

at 621, 440 S.E.2d at 153 (during traffic stop, driver

voluntarily advised officer that a pistol was in the locked

console compartment); Watson 17 Va. App. at 125, 435 S.E.2d at

429 (pistol discovered concealed under floormat after driver

was arrested following a traffic stop).

The Commonwealth maintains that, subject to certain

exceptions not applicable on these facts, see Code § 18.2-

308(B) and Code § 18.2-308(C), a violation of Code § 18.2-

308(A) is an inchoate offense committed upon concealment of a

weapon. Farrakhan v. Commonwealth, 273 Va. 177, 182, 639

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S.E.2d. 227, 230 (2007). Therefore, the Commonwealth contends

that the instant Pruitt closed the console compartment in

which he placed the pistol, Pruitt was guilty of violating

Code § 18.2-308(A). Additionally, even after Pruitt exited

his vehicle, the Commonwealth contends that the pistol

remained about Pruitt’s person because he “had only to open

the car door, lean in and open the console to secure the

weapon in mere seconds.” We disagree with the Commonwealth.

First, the Commonwealth’s reliance on Farrakhan is

misplaced. While we did state in Farrakhan that “[b]ecause an

offense under Code § 18.2-308(A) is ‘possessory’ in nature, it

is committed upon concealment,” id., we were not concerned in

that case with whether the defendant concealed a weapon “about

his person,” but whether the item he had concealed within a

pocket of his clothing was a “weapon of like kind” within the

meaning of Code § 18.2-308(A). There was simply no issue in

Farrakhan as to whether the item was concealed “about his

person.”

By contrast, in this case, the issue is whether a weapon

is concealed “about [the] person” of the defendant as

contemplated by Code § 18.2-308(A) when he places it into a

closed compartment inside a vehicle as he is exiting the

vehicle. In all previous cases decided by this Court and the

Court of Appeals construing the term “about his person” where

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the weapon was not concealed by or in the defendant’s

clothing, the issue was whether the weapon remained “so

accessible as to afford prompt and immediate use” by the

defendant while it was concealed. Sutherland, 109 Va. at 835,

65 S.E. at 15.

In Sutherland, for example, the defendant placed a

holstered pistol in a saddlebag that he carried in his hands,

id., while in Schaaf the pistol was in a handbag carried by

the defendant. Schaaf, 220 Va. at 430, 258 S.E.2d at 574. In

Sutherland, we held that a holstered pistol within a saddlebag

was not “so connected with the person as to be readily

accessible for use or surprise if desired” and, thus, though

“hid[den] from common observation,” as the relevant statute

required, it was not within the intendment of the statute’s

further requirement that the weapon be “about his person.”

Sutherland, 109 Va. at 835-36, 65 S.E. at 15-16. However,

distinguishing and narrowing the holding in Sutherland by

noting that a handbag was usually carried closer to the

defendant’s person than was a saddlebag and was of a character

that its contents were more readily accessible, in Schaaf we

held that a pistol loose in a zippered handbag was about the

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defendant’s person.2 Schaaf, 220 Va. at 431, 258 S.E.2d at

575.

Although the principle underlying Sutherland and Schaaf –

that the harm to be interdicted by Code § 18.2-308(A) is the

accessibility of a concealed weapon for prompt and immediate

use – is applicable in this case, those cases do not resolve

our analysis. It is self-evident that when a person conceals

a weapon in an enclosed console of a vehicle and then exits

that vehicle, the weapon is not as readily accessible as a

weapon concealed in a carried bag or satchel. Similarly, the

Court of Appeals’ decisions in Leith and Watson are inapposite

here because in both of those cases it is readily apparent

that the defendants remained inside the vehicles in close

proximity to where the weapons were concealed until directed

to exit the vehicles by the police. Thus, in each of those

cases, there was no doubt that the weapons remained so

accessible to the defendants as to afford prompt and immediate

use.

The undisputed facts in the instant case are clearly

distinguishable from those in Schaaf, Leith, and Watson.

There simply is no evidence demonstrating that Pruitt remained

2
In Schaaf, we also held that “[w]hile Sutherland can be
distinguished from this case on the facts, to the extent that
there may be a conflict Sutherland is overruled.” Id. at 432,
258 S.E.2d at 575.

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in the vehicle for any appreciable length of time beyond that

necessary to place his pistol in the console compartment.

Granting all reasonable inferences to the Commonwealth, the

evidence established that Pruitt placed the pistol inside the

console compartment as he was exiting his vehicle. Once he

exited the vehicle and closed the door, the pistol was no

longer accessible to him so as to afford “prompt and immediate

use.” Thus, we hold that at no time while the pistol was

concealed inside the console compartment was it “about

[Pruitt’s] person” as required by the statute.

CONCLUSION

For these reasons, we hold that the Court of Appeals

erred in holding that the evidence was sufficient to find

Pruitt guilty of concealing a weapon in violation of Code

§ 18.2-308(A) and in upholding the judgment of the circuit

court in that regard. Because the evidence was not sufficient

to show that Pruitt concealed the pistol about his person, we

will reverse the judgment of the Court of Appeals, vacate

Pruitt’s conviction, and dismiss the indictment against him.

Reversed and dismissed.

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