Samuel H. Kingrey, III v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
SAMUEL H. KINGREY, III
MEMORANDUM OPINION * BY
v. Record No. 2202-97-2 JUDGE DONALD W. LEMONS
JULY 13, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
John B. Boatwright, III (Boatwright & Linka,
on briefs), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Samuel H. Kingrey, III was convicted in a bench trial of
possession of a concealed weapon as a convicted felon, a
violation of Code § 18.2-308.2. On appeal, he contends that the
evidence is insufficient to support his conviction. We disagree
and affirm his conviction.
I. BACKGROUND
On March 29, 1997, Officer Hunter of the Henrico County
Police Department received a radio call that there was a fight
at the Crown Gas Station in Henrico County. When Hunter arrived
at the scene he determined that Kingrey had assaulted his
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
girlfriend. Hunter placed Kingrey under arrest and conducted a
search incident to his arrest. In Kingrey’s right front pocket
Hunter found a pocketknife and in his right rear pocket he found
what is commonly called a “butterfly knife.” Hunter described
the knife as “one that can be easily whipped around and swung”
and “[i]t’s more of a fighting knife. It’s not like a cutting
knife or a paring knife.” Hunter estimated the knife to be
approximately “three to four inches” in length. He further
testified that the butterfly knife was totally concealed in
Kingrey’s back pocket. Kingrey was charged with possession of a
concealed weapon by a convicted felon, a violation of Code
§ 18.2-308.2. At the conclusion of the trial, Kingrey moved the
court to dismiss the charge contending that the knife in
question was not a weapon within the definition of Code
§ 18.2-308. Kingrey was found guilty of possession of a
concealed weapon by a convicted felon. On appeal, Kingrey
maintains that the evidence was insufficient to support the
conviction.
II. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is an issue on appeal,
the evidence must “be viewed in the light most favorable to the
Commonwealth, the prevailing party below, granting to it all
reasonable inferences, and the judgment of the trial court must
be affirmed unless it appears that it is plainly wrong, or
without evidence to support it.” Beavers v. Commonwealth, 245
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Va. 268, 281-82, 427 S.E.2d 411, 421 (1993). On appeal, the
decision of a trial court sitting without a jury is afforded the
same weight as a jury’s verdict and will not be disturbed unless
plainly wrong or without evidence to support it. See King v.
Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977).
Kingrey was convicted of possession of a concealed weapon
by a convicted felon in violation of Code § 18.2-308.2, which
prohibits any person who has been convicted of a felony from
“knowingly and intentionally [carrying] about his person, hidden
from common observation, any weapon described in § 18.2-308.”
Code § 18.2-308 states in relevant part:
A. If any person carries about his
person, hidden from common observation, (i)
any pistol, revolver, or other weapon
designed or intended to propel a missile of
any kind; or (ii) any dirk, bowie knife,
switchblade knife, ballistic knife, razor,
slingshot, spring stick, metal knucks, or
blackjack; or . . . (v) any weapon of like
kind as those enumerated in this subsection
. . . .
Kingrey contends that the knife found in his right rear
pocket is neither one of the statutorily enumerated weapons nor
is a weapon of “like kind” and therefore cannot support a
conviction for a violation of Code § 18.2-308.2. We have
previously stated that when construing Code § 18.2-308, “[t]he
determination of whether a particular knife falls within the
meaning of a term used in the statute is a question fact to be
determined by the trier of fact.” Richards v. Commonwealth, 18
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Va. App. 242, 246 n.2, 443 S.E.2d 177, 179 n.2 (1994). At
trial, the arresting officer testified that the knife was “one
that can easily be whipped around and swung open. It’s more of
a fighting knife. It’s not like a cutting knife or a paring
knife or something like that.”
Absent statutory definition we must seek ordinarily
accepted meanings given to terms in the context of their use.
Websters Third New International Dictionary (1993), defines the
following terms:
dirk 1: a long straight-bladed dagger
formerly carried esp. by the
Scottish Highlander
2: a short sword formerly worn by
British junior naval
officers.
Id. at 642.
dagger 1a: a short knife used for
stabbing . . . .
Id. at 570.
sword 1a: a weapon with a long blade
for cutting or thrusting set
in a hilt usu. terminating in
a pommel and often having a
tang or a protective guard
where the blade joins the
handle . . . .
Id. at 2314.
The trial court found Kingrey guilty without enumerating
whether the weapon in question was one of the enumerated items
or a “weapon of like kind.” Given the definitions recited
above, the butterfly knife, when opened, most closely resembles
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a dirk. The knife easily opens and was described by the police
officer as a “fighting knife.” Based upon its appearance, it is
a weapon of “like kind” to a dirk contemplated in the statute.
In construing Code § 18.2-308 the Supreme Court of Virginia has
said that “the purpose of the statute was to interdict the
practice of carrying a deadly weapon about the person,
concealed, and yet accessible as to afford prompt and immediate
use.” Schaaf v. Commonwealth, 220 Va. 429, 430, 258 S.E.2d 574,
574-75 (1979) (quoting Sutherland’s Case, 109 Va. 834, 835-36,
65 S.E. 15, 15 (1909)). Based upon this record, we cannot say
that the trial court was plainly wrong or without evidence to
support the verdict. The conviction is affirmed.
Affirmed.
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Benton, J., dissenting.
At the conclusion of the evidence, the trial judge looked
at the knife Samuel H. Kingrey possessed and asked “[i]ts not a
paring knife either, is it . . . ?” The trial judge made no
other comment that could be interpreted as a finding concerning
the knife. On appeal, the Commonwealth contends the knife was
“a dirk, or a weapon of like kind” and also “was a weapon of
like kind to a ‘switchblade knife.’” However, the record does
not establish that the knife was anything other than a variation
of a pocketknife.
“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.’” Ricks v. Commonwealth, 27 Va. App. 442, 444,
499 S.E.2d 575, 576 (1998) (citation omitted). Code § 18.2-308
does not prohibit the carrying of pocketknives or knives of like
kind. See Wood v. Henry County Public Schools, 255 Va. 85, 95,
495 S.E.2d 255, 261 (1998) (holding that “a pocketknife is
neither a dirk, bowie knife, switchblade knife, ballistic knife,
nor a weapon of like kind”). Kingrey’s knife contained a blade
that folded into the handle and was fit for being carried in a
pocket. It was a pocketknife.
I would reverse the conviction.
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