Rommel Castro Eleccion v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Overton
Argued at Norfolk, Virginia
ROMMEL CASTRO ELECCION
MEMORANDUM OPINION * BY
v. Record No. 2162-95-1 JUDGE NELSON T. OVERTON
OCTOBER 1, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
William F. Burnside, Assistant Public
Defender, for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
A police officer stopped Rommel Castro Eleccion driving on
school grounds. Eleccion had a butterfly knife under the floor
mat on the driver's side and was charged with possession of a
concealed weapon in violation of Code § 18.2-308. He was
convicted in a bench trial and now appeals, contending (1) that
his knife is not a weapon for the purposes of this statute, and
(2) that the knife was not about his person. We disagree with
both contentions and affirm the conviction.
The statute in issue reads 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,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
blackjack, or . . . (v) any weapon of like
kind as those enumerated in this subsection,
he shall be guilty of a Class 1 misdemeanor.
Code § 18.2-308 (emphasis added). The trial judge, after
examining the butterfly knife and consulting a common dictionary,
ruled that the knife, when in the open position, was about the
same size as, and looks similar to, a dirk or dagger. He held
that the knife was a "weapon of like kind" to a dirk and
therefore a weapon under Virginia's concealed weapon statute.
The evidence in the record supports this conclusion and we find
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no error on this issue.
We also find that the knife in this case was about the
person. "'About the person' must mean that it is so connected
with the person as to be readily accessible for use or surprise
if desired." Schaaf v. Commonwealth, 220 Va. 429, 430, 258
S.E.2d 574, 575 (1979) (quoting Sutherland's Case, 109 Va. 834,
835, 65 S.E. 15, 15 (1909)). This Court has consistently held
that areas around the driver of a car have been about the person.
See, e.g., Leith v. Commonwealth, 17 Va. App. 620, 440 S.E.2d
152 (1994) (pistol locked in the glove compartment); Watson v.
Commonwealth, 17 Va. App. 124, 435 S.E.2d 428 (1994) (pistol
under driver's floor mat). Eleccion's knife under his floor mat
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Having found that the butterfly knife is a weapon of like
kind to a dirk, we decline to decide whether a butterfly knife is
encompassed within the meaning of "switchblade," as other
jurisdictions have done. See, e.g., State v. Riddall, 811 P.2d
576 (N.M. 1991) (holding a butterfly knife to be within the
statutory definition of a switchblade); State v. Strange, 785
P.2d 563 (Alaska Ct. App. 1990) (finding the contrary).
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does not warrant an exception to this rule.
Accordingly, the conviction is affirmed.
Affirmed.
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