COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia
MODRELL ANTOINE WILLIAMS, S/K/A
MODRELLE WILLIAMS
OPINION BY
v. Record No. 2778-98-1 JUDGE WILLIAM H. HODGES
NOVEMBER 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Appellant, Modrell Antoine Williams, appeals his conviction
for possession of a firearm by a convicted felon in violation of
Code § 18.2-308.2. For the reasons set forth below, we reverse.
FACTUAL BACKGROUND
On June 14, 1998, Officer R.K. Butler received information
that someone matching appellant's description had "retrieve[d] a
gun from some bushes." A short time later, Butler located
appellant. Appellant quickly entered a laundromat. Butler
entered and asked appellant, "'Where is it at?'" Appellant
said, "'It's in the trash can'; and he pointed to a small trash
can."
Butler's partner recovered a gun from the trash can.
Appellant told Butler that "the gun did not belong to him" but
that a man who had taken his money and who appellant had been
chasing had thrown it in the bushes. Because the man allegedly
took appellant's money, appellant told Butler "that he took the
gun, thinking that he had something." Appellant told Butler
that he "thought [he] had something, but [he] tried the trigger,
and [he did not] even think it work[ed]."
Butler testified that the recovered gun, Commonwealth's
Exhibit 1, was a ".38 caliber revolver," manufactured by "Ivan
Johnson Arms." When asked to describe its condition, Butler
explained:
It's rusty. The trigger mechanism does not
seem to make the hammer of the gun actuate.
There may be a defect in the gun. I don't
know if there is a particular way that it
has to be used to make the hammer actuate,
but the trigger doesn't necessarily work
properly; however, it was designed to propel
a projectile.
In arguing his motion to strike, appellant contended the
gun was incapable of creating an explosion, was "defective," and
was inoperable. The prosecutor contended the gun was designed
to propel a missile by means of an explosion and was, therefore,
a firearm. The prosecutor also argued that
there is always potential [for the gun to
fire]. We don't know what it would take to
make that gun an operating gun, and it might
just take a good cleaning. We don't know;
however, what we do know is that the officer
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testified that it was designed to propel a
projectile through an explosion.
We also have the defendant's statement,
his admission to the police officer, that he
thought he had something . . . .
The trial judge asked to look at the gun one more time,
after which he stated, "I'm going to deny the motion."
DISCUSSION
Introduction
The issue before us is whether the evidence was sufficient
to convict appellant for violating Code § 18.2-308.2. In
resolving that issue, we must first determine whether the
condition of a firearm possessed by a convicted felon may affect
the nature or character of the weapon so as to exclude it as a
proscribed object under the statute. In making that
determination, we analyze Code § 18.2-308.2, our
felon-in-possession statute, and statutory and case law from
Virginia and other jurisdictions dealing with firearms.
The Law in Virginia
Code § 18.2-308.2 makes it "unlawful for . . . any person
who has been convicted of a felony . . . to knowingly and
intentionally possess or transport any firearm." This code
section contains no definition of "firearm."
In Jones v. Commonwealth, 16 Va. App. 354, 356, 429 S.E.2d
615, 616, aff'd on reh'g en banc, 17 Va. App. 233, 436 S.E.2d
192 (1993), the defendant was convicted of violating Code
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§ 18.2-308.2 based on his possession of a BB handgun. We looked
to the legislature's purpose in enacting the statute and
explained:
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.
Therefore, we hold that the term "firearm"
as used in Code § 18.2-308.2 is used in its
traditional sense. The statute does not
seek to protect the public from fear of harm
caused by the display of weapons; rather, it
is concerned with preventing a person, who
is known to have committed a serious crime
in the past, from becoming dangerously
armed, regardless of whether that person
uses, displays, or conceals the
firearm. . . . Accordingly, Code
§ 18.2-308.2 does not include a BB handgun,
which is a device that propels a projectile
by pneumatic pressure.
Id. at 357-58, 429 S.E.2d at 617 (emphases added).
In Gregory v. Commonwealth, 28 Va. App. 393, 504 S.E.2d 886
(1998), a detective arrested Gregory, a convicted felon, on an
outstanding warrant, and "found in Gregory's pocket a magazine
loaded with ten rounds of .22 caliber ammunition." Id. at 397,
504 S.E.2d at 888. From appellant's trailer, the detective
obtained "a .22 caliber Remington Model 522 semi-automatic
rifle." Id. The magazine fit into the rifle. See id.
Gregory contended on appeal that the evidence failed to
prove the object recovered by the detective "was a 'firearm'"
under the statute. See id. at 399, 504 S.E.2d at 889. We
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stated, "in determining whether an item is a 'firearm,' the
Commonwealth must prove two discrete elements: (1) that the
weapon is designed or intended to expel projectiles by the
discharge or explosion of gunpowder, and (2) that it is capable
of doing so." Id. at 400, 504 S.E.2d at 889 (emphasis added).
Noting that "the best method for proving that an item is a
firearm is presentation of direct forensic evidence of the
nature and operability of the item," we held that
"'[c]ircumstantial evidence is as competent and is entitled to
as much weight as direct evidence'" to prove that the item is a
firearm. Id. (emphasis added).
We affirmed the conviction and found that the item
possessed by Gregory "was designed or intended to expel a
projectile by means of a gunpowder explosion." Id. In
affirming, we reviewed the following circumstantial evidence:
Although the Commonwealth failed to explain
how the rifle operated or to present
ballistics evidence, Detective Mooney
examined the weapon and testified that it
was a .22 caliber, Remington Model 522
semi-automatic rifle. In his testimony, he
referred to the weapon as a "firearm." The
rifle and the loaded magazine were
introduced as exhibits and were evidence
from which the jury could infer that the
rifle was designed or intended to expel
projectiles by the power of explosion of
gunpowder.
Id. Significantly, there was no evidence before the trial court
that Gregory's rifle was incapable of expelling a projectile by
an explosion.
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In Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436
(1999), the defendant, "a previously convicted felon, entered a
convenience store and placed a 'long, black gun' on the
counter." Id. at 258, 511 S.E.2d at 437. No gun was seized
from Redd or produced at trial. See id. at 260, 511 S.E.2d at
438 (Benton, J., dissenting, on the ground that the Commonwealth
failed to prove that the object placed on counter "had the
actual ability to expel a projectile by the power of an
explosion"). We affirmed the conviction, holding:
The store clerk's description of the object
brandished by Redd as "a long black gun" is
insufficient, alone, to prove that the
object possessed the "ability to expel a
projectile by the power of an explosion."
However, Redd's threat, upon presenting the
weapon, to kill the clerk was an implied
assertion that the object was a functioning
weapon, being in fact the firearm that it
appeared to be and possessing the power to
kill. This implied assertion, which was
corroborated by the appearance of the object
and was uncontradicted by any other
evidence, was evidence sufficient to support
the trial court's finding that the object
was a firearm.
Id. at 259, 511 S.E.2d at 438 (emphases added).
In Jones and Gregory, we attempted to define the term
"firearm" under Code § 18.2-308.2 in a manner that was
consistent with the legislature's purpose for enacting the
statute. In Jones, we explained that the purpose of the statute
was to keep convicted felons "from possessing a device that has
the actual capacity to do serious harm because of its ability to
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expel a projectile by the power of an explosion." Jones, 16 Va.
App. at 357-58, 429 S.E.2d at 617. The definition put forth in
Jones employs language from Code § 18.2-308.2:2(G), 1 which
defines "Firearm" as "any handgun, shotgun, or rifle which
expels a projectile by action of an explosion." 2
Therefore, the Commonwealth is initially required to prove
that a convicted felon possessed an actual firearm, namely, a
weapon manufactured for the purpose of expelling a projectile by
an explosion. In Jones, we required the firearm to have the
"actual capacity to cause harm" and noted the statute's purpose
to prevent felons from becoming "dangerously armed." Because
Jones involved a BB gun, we did not need to address the
firearm's "actual capacity to cause harm."
In a case decided before Gregory involving a different
firearm statute, we upheld the conviction of a defendant who,
while possessing drugs, possessed a firearm containing no clip
or magazine. See Timmons v. Commonwealth, 15 Va. App. 196, 198,
421 S.E.2d 894, 895 (1992) (involving Code § 18.2-308.4,
prohibiting possession of "a controlled substance classified in
Schedule I or II of the Drug Control Act" while simultaneously
1
Code § 18.2-308.2:2 requires firearm dealers and
purchasers to supply information for criminal history record
information checks.
2
That definition comports with the following definition of
a "firearm" from Black's Law Dictionary 648 (7th ed. 1999): "A
weapon that expels a projectile (such as a bullet or pellets) by
the combustion of gunpowder or other explosive."
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possessing any firearm). Timmons argued that the .32 caliber
pistol was not a firearm under the statute "because the absence
of the clip rendered the pistol inoperable at the time it was
seized." Id. The trial court erroneously instructed the jury
that "'[a] firearm is any object which gives the appearance of
having the capability of firing a projectile" whether or not it
has "the capability of firing a projectile.'" Id. (emphasis
added). Because the instruction allowed the jury to convict
appellant for possessing "'any object,' whether that object is
an actual weapon or merely a toy," we held the instruction was
too broad. Id. at 199, 421 S.E.2d at 896. However, we found
such error harmless under the facts of the case. See id. We
explained:
There is no dispute that the "object"
Timmons was charged with possessing was a
.32 caliber semi-automatic pistol. In the
context of this case, the jury was not
concerned with "any object" but, rather,
this particular .32 caliber pistol. Thus,
although the broad language in the
instruction included "any object," the
evidence showed that the pistol in this case
was, in fact, a weapon, and not simply an
unidentified object. Because there was no
dispute that the weapon was a .32 caliber
semi-automatic pistol, the objectionable
language in the instruction did not affect
any issue that was in dispute and,
therefore, did not affect the verdict.
Id.
Relying on Rogers v. Commonwealth, 14 Va. App. 774, 418
S.E.2d 727 (1992), we explained in Timmons:
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[A] weapon is not excluded from the
operation of the statute simply because it
is missing a part at the time it is seized.
In Rogers, we had occasion to consider
whether a weapon, which had no firing pin
when discovered and, thus, "could not be
fired as found," was nonetheless a
"sawed off shotgun" as that term is defined
in the "Sawed-Off" Shotgun Act (Code
§§ 18.2-299 - 18.2-307). The appellant in
Rogers asserted that his conviction for
possession of a sawed-off shotgun should be
reversed because the absence of a firing pin
made the weapon inoperable. In holding that
"the absence of a firing pin in such a
weapon does not exempt it from prohibition
under the Act," we recognized that the
weapon would have become completely operable
"after a moment's delay to insert a firing
pin." We stated that holding otherwise
"'would permit criminals to carry [weapons]
in the first stage of disassembly, ready to
be reassembled on a moment's notice.'
Alternatively, a criminal carrying [such a
weapon] would be allowed to rendezvous with
a confederate carrying the firing pin,
thereby avoiding the application of the
Act."
We find the reasoning in Rogers
persuasive. A clip, like a firing pin, can
be inserted "on a moment's notice" so as to
make the weapon operable. To hold that a
weapon merely missing a clip falls outside
the scope of the statute would be tantamount
to holding that criminals may carry weapons
while possessing controlled substances, so
long as the weapon is missing one part that
could be quickly inserted "on a moment's
notice." As in Rogers, we believe that this
would produce a result unintended by the
legislature. Therefore, Timmons' contention
that a weapon must be operable when
discovered in order to fall within the
purview of Code § 18.2-308.4 is without
merit.
15 Va. App. at 200-01, 421 S.E.2d at 897 (emphasis added).
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In Rogers, the evidence established that
[t]he weapon had no firing pin when
discovered, and therefore could not be fired
as found. Additionally, no firing pin was
recovered from appellant. However, the
weapon could be made to fire by inserting a
small nail or pin. No specific expertise
would be required to insert such a pin.
14 Va. App. at 776, 418 S.E.2d at 728 (emphasis added).
Except for the absence of the clip in Timmons and the
absence of the firing pin in Rogers, conditions that could
quickly and easily be remedied, there was no evidence that the
weapons would not operate after the missing magazine or firing
pin was inserted.
In Jones and Gregory, we set forth the purpose of the
statute and explained the elements that the Commonwealth must
prove. See Gregory, 28 Va. App. at 399, 504 S.E.2d at 889
(Commonwealth must prove that weapon was designed or intended to
expel projectiles by explosion and that it is capable of doing
so); Jones, 16 Va. App. at 357, 429 S.E.2d at 617 (Code
§ 18.2-308.2 prohibits felons from possessing device that has
actual capacity to do serious harm).
ANALYSIS
Introduction
In explaining our analysis, we feel it important to
distinguish cases like this one, where the object is recovered,
produced at trial and proven to be an actual firearm, from cases
in which no object is recovered and produced at trial. Cf.
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Redd, 29 Va. App. at 260, 511 S.E.2d at 438 (because no object
was recovered or produced, Commonwealth was required to use
circumstantial evidence to establish whether object was actual
firearm). Therefore, the following analysis is limited to
establishing whether an actual firearm is operational or can be
readily made operational.
Operability
Here, the Commonwealth's evidence established that
appellant possessed an actual firearm designed for the intended
purpose of expelling a projectile by an explosion. The
Commonwealth's evidence also established that the firearm was in
disrepair and that neither the hammer nor the trigger of the
firearm was operational. The Commonwealth presented no evidence
explaining why the gun did not operate or what repairs, if any,
could or would make the firearm operational.
Because the statute is intended to prevent harm from
convicted felons who become dangerously armed, we hold that the
statute prohibits felons from possessing actual firearms that
are presently operational or that can readily or easily be made
operational or capable of being fired with minimal effort and
expertise. To that end, we agree with the reasoning used in
Timmons and Rogers that a weapon does not cease to be a firearm
merely because it has no present or immediate capacity to fire a
projectile. In those cases, which dealt with other firearm
statutes, the absence of a firing pin or a loaded magazine were
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deemed deficiencies that could easily and readily be corrected.
To hold that an object in such condition is not a firearm having
the capacity to cause harm would allow convicted felons to
possess a temporarily disabled or unloaded firearm that could
quickly be made dangerous. Such a result would thwart the
statute's purpose. See State v. Anderson, 971 P.2d 585, 591
(Wash. Ct. App. 1999) ("It begs reason to assume that our
Legislature intended to allow convicted felons to possess
firearms so long as they are unloaded, or so long as they are
temporarily in disrepair, or so long as they are temporarily
disassembled, or so long as they are not immediately
operable.").
Sufficiency of the Evidence
Under the above definition, the Commonwealth is required to
prove that the accused possessed an actual firearm that is, or
can readily be made, operational. Thus, the Commonwealth must
initially prove that the accused possessed an object
manufactured for the purpose of expelling a projectile by an
explosion, namely, a firearm. See Jones, 16 Va. App. at 357-58,
429 S.E.2d at 617. It then must prove that the firearm is
operational or can readily be made operational. Direct evidence
that the police test-fired the firearm would provide the best
proof of the firearm's operability; however, "[c]ircumstantial
evidence is as competent and is entitled to as much weight as
direct evidence, provided it is sufficiently convincing to
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exclude every reasonable hypothesis except that of guilt."
Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876
(1983); cf. Byers v. Commonwealth, 23 Va. App. 146, 150-51, 474
S.E.2d 852, 854 (1996) (explaining that proof of "actual"
possession of a firearm under Code § 18.2-53.1 may be
established by circumstantial evidence, direct evidence, or
both); see also Commonwealth v. Layton, 307 A.2d 843, 844 (Pa.
1973) (fact finder may infer operability from object that looks
like, feels like, sounds like or is like, a firearm; such an
inference would be reasonable without direct proof of
operability).
Some circumstances that can establish that an actual
firearm is operational or can readily be made operational
include: whether the object was loaded with bullets; whether any
implied assertions or threats were made as to the weapon's
ability to cause injury; whether the accused possessed
ammunition, magazines or other parts or pieces suggesting that
the firearm was capable of firing or could readily be made
capable of firing; and proper testimony explaining what minor
steps could make the firearm operational. 3
Here, the Commonwealth's evidence established that
appellant possessed an actual firearm, although rusty and
inoperable. Nevertheless, the Commonwealth offered no evidence
3
This list of circumstances is not exclusive.
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that the weapon could be readily rendered functional. 4 Thus, the
Commonwealth proved only that appellant possessed an inoperable
firearm, clearly insufficient proof that the weapon was one
proscribed by Code § 18.2-308.2. Accordingly, appellant's
conviction is reversed, and the indictment is dismissed.
Reversed and dismissed.
4
The prosecutor's speculative oral argument that the
firearm might need only a "good cleaning" was not evidence.
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