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
- 2 -
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
- 3 -
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.
- 4 -