John Leroy Bond v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia
JOHN LEROY BOND
MEMORANDUM OPINION * BY
v. Record No. 2476-95-1 JUDGE NELSON T. OVERTON
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
James L. McLemore, III, for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
John Leroy Bond was convicted of possession of a firearm
after having been convicted of a felony. We hold that the
evidence is sufficient to support the conviction, and we affirm.
"A conviction for knowingly and intentionally possessing a
firearm after having been convicted of a felony, see Code
§ 18.2-308.2, requires proof beyond a reasonable doubt of either
actual or constructive possession of the firearm." Hancock v.
Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 139 (1995);
see Blake v. Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219,
220 (1993). To support a conviction based on constructive
possession, the Commonwealth must prove that the defendant "was
aware of both the presence and character of the [item] and that
it was subject to his dominion and control." Hancock, 21 Va.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. at 469, 465 S.E.2d at 140 (quoting Powers v. Commonwealth,
227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)) (alteration in
original).
An exception from this strict rule exists in certain
situations. Almost one hundred and thirty years ago, the United
States Supreme Court in United States v. Kirby, 74 U.S. 482
(1868), discussed the need to distinguish circumstances in which
apparent criminal conduct would be justifiable and declared to be
lawful because of necessity.
The common sense of man approves the
judgment mentioned by Puffendorf, that the
Bolognian law which enacted, "that whoever
drew blood in the streets should be punished
with the utmost severity," did not extend to
the surgeon who opened the vein of a person
that fell down in the street in a fit. The
same common sense accepts the ruling, cited
by Plowden, that the statute of 1st Edward
II, which enacts that a prisoner who breaks
prison shall be guilty of felony, does not
extend to a prisoner who breaks out when the
prison is on fire - "for he is not to be
hanged because he would not stay to be
burnt." And we think that a like common
sense will sanction the ruling we make, that
the act of Congress which punishes the
obstruction or retarding of the passage of
the mail, or of its carrier, does not apply
to a case of temporary detention of the mail
caused by the arrest of the carrier upon an
indictment for murder.
Id. at 487.
In analogous reasoning, this Court has recognized that
"'[f]or reasons of social policy, it is better that the
defendant, faced with a choice of evils, choose to do the lesser
evil (violate the criminal law) in order to avoid the greater
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evil threatened by the other person.'" Daung Sam v.
Commonwealth, 13 Va. App. 312, 323, 411 S.E.2d 832, 838 (1991)
(citation omitted).
Initially, Bond's actions may have placed his possession of
the firearm into this exception. The evidence proved that Willie
Deloatch engaged in a fight with another man. Later, when highly
intoxicated, Deloatch approached the man and a group of people on
a street. Deloatch was holding a gun. A woman in the group, who
knew that Bond was Deloatch's friend, went to Bond's grocery
store and asked Bond if he would intervene with Deloatch to stop
the incident. Bond, who had been friends with Deloatch for
thirty years, went to confront Deloatch.
When Bond arrived, Deloatch had fired the gun three times.
Deloatch was intoxicated, had a swollen eye, and was angrily
threatening the man with the gun. Bond spoke with Deloatch and
attempted to calm him. Bond testified that Deloatch's mother had
recently died and that Deloatch was upset, crying, and uncaring
about his own conduct. Deloatch announced that he intended to
shoot the man. After Bond reasoned with Deloatch, Deloatch gave
him the gun.
Bond coaxed Deloatch into his car and drove with Deloatch to
Gwendolyn Golden's residence. Golden was Bond's romantic friend
and a person whom Deloatch respected. Bond explained to Golden
what had occurred and asked to leave the gun with her until
Deloatch was sober. She agreed. Bond placed the gun on top of a
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high cabinet in Golden's kitchen and left with Deloatch.
Two years later, when the police were searching Golden's
residence in connection with another matter, a police officer
found the gun atop the cabinet. The gun had dust on it and had
been undisturbed. The officer testified that the accumulation of
dust indicated to him that the gun had been on the cabinet for a
long time. Golden testified that she had forgotten about the gun
until the police found it.
After the discovery of the gun, another police officer went
to Bond's store and questioned Bond about the gun. Bond
testified that he then remembered the gun and explained the
incident involving Deloatch. The officer arrested Bond for
possession of a firearm after having been convicted of a felony.
After his arrest, Bond gave the police a written statement in
which he stated that he had taken the gun from Deloatch to "keep
a person from getting hurt" and that he placed the gun atop a
cabinet over the sink at Golden's residence.
The trial judge ruled that Bond's initial, actual possession
was justifiable. That ruling was based on the following
findings:
Mr. Bond, in this case I would agree with
what your lawyer said that the Court
certainly would not find you guilty of
possessing a firearm under the circumstances
that you took it. No question you took it
under circumstances where you were trying to
prevent someone from getting hurt and
rightfully so. You did the right thing, no
question. I don't think no Judge, nor no
jury in the world would convict you of
possessing a firearm under those
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circumstances because you didn't really
intentionally possess it at that time. The
problem arises after that.
The trial judge then found Bond guilty of constructive
possession of the gun because the gun remained in Golden's
residence. The judge stated the following rationale for the
conviction:
Now, the code does not allow a convicted
felon to hold a firearm for someone else as
an agent, fiduciary or any capacity. A
convicted felon is not allowed to hold a gun
for someone, other than some emergency
purposes. And obviously the emergency ceased
to exist once the cooling period was over and
at some point even maybe you could say well,
you should have kept it a day and let him
sober up. Maybe so, but at some point that
ended, that emergency situation ended.
There's no question in the Court's mind,
Mr. Bond, under the law you had constructive
possession of this weapon. You put it where
it was found. Mr. Bond had access, no
question, to the home. There's no question
he came and went from that home. I agree
it's not your home, you don't live there, but
Mr. Bond did come and go. That's what the
testimony is and sometimes he spent the night
there.
We agree with the trial court's conclusions. Bond admitted
at trial that at one time he was aware of both the presence and
character of the firearm. Indeed, he personally placed it in its
location because he knew it was a dangerous weapon. Bond argues
on appeal that he later lost awareness of the presence of the gun
by forgetting it. We cannot accept the proposition that one may
lose possession or dispossess oneself of property by mere
forgetfulness. Creating such a principle would lead to absurd
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results, especially in cases of controlled substances or stolen
property. 1
The evidence presented at trial also sufficiently proved the
second element: dominion and control over the firearm. Though
not in Bond's residence, the gun was in an apartment that Bond
frequented on a regular basis and often stayed overnight. Bond
admitted placing the firearm there without asking the consent of
the apartment's owner, and when asked by the apartment's owner
what he planned to do with it, he stated that he was going to
hold it until he decided to return it to the gun's owner. Bond
thereafter had unrestricted access to the firearm.
The circumstances after the emergency had passed evidence
Bond's dominion and control over the firearm such that, when
combined with Bond's actual knowledge of the presence and
character of the gun, the evidence is sufficient to support a
conviction for possession of a firearm after having been
convicted of a felony.
Affirmed.
1
This case is distinguished from Hancock, in which the trial
court found only that the defendant should have known about the
presence of the firearm, a standard lower than the statutorily
prescribed "knowingly and intentionally possess[ing]." Hancock,
21 Va. App. at 469, 465 S.E.2d at 140; see Code § 18.2-308.2.
Here, Bond concedes that he actually knew about the firearm at
one time, and thereafter forgot it.
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Benton, J., dissenting.
"A conviction for knowingly and intentionally possessing a
firearm after having been convicted of a felony, see Code
§ 18.2-308.2, requires proof beyond a reasonable doubt of either
actual or constructive possession of the firearm." Hancock v.
Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 139 (1995).
Furthermore, almost one hundred and thirty years ago, the United
States Supreme Court in United States v. Kirby, 74 U.S. 482
(1868), discussed the need to distinguish circumstances in which
apparent criminal conduct would be justifiable and declared to be
lawful because of necessity.
The common sense of man approves the
judgment mentioned by Puffendorf, that the
Bolognian law which enacted, "that whoever
drew blood in the streets should be punished
with the utmost severity," did not extend to
the surgeon who opened the vein of a person
that fell down in the street in a fit. The
same common sense accepts the ruling, cited
by Plowden, that the statute of 1st Edward
II, which enacts that a prisoner who breaks
prison shall be guilty of felony, does not
extend to a prisoner who breaks out when the
prison is on fire - "for he is not to be
hanged because he would not stay to be
burnt." And we think that a like common
sense will sanction the ruling we make, that
the act of Congress which punishes the
obstruction or retarding of the passage of
the mail, or of its carrier, does not apply
to a case of temporary detention of the mail
caused by the arrest of the carrier upon an
indictment for murder.
Id. at 487.
In analogous reasoning, this Court has recognized that
"'[f]or reasons of social policy, it is better that the
- 7 -
defendant, faced with a choice of evils, choose to do the lesser
evil (violate the criminal law) in order to avoid the greater
evil threatened by the other person.'" Daung Sam v.
Commonwealth, 13 Va. App. 312, 323, 411 S.E.2d 832, 838 (1991)
(citation omitted). The evidence in this appeal proved that John
Bond's conduct was justifiable, probably saved another person's
life, and was not criminal.
The evidence proved that Willie Deloatch engaged in a fight
with another man. Later, when highly intoxicated, Deloatch
approached the man and a group of people on a street. Deloatch
was holding a gun. A woman in the group, who knew that Bond was
Deloatch's friend, went to Bond's grocery store and asked Bond if
he would intervene with Deloatch to stop the incident. Bond, who
had been friends with Deloatch for thirty years, went to confront
Deloatch.
When Bond arrived, Deloatch had fired the gun three times.
Deloatch was intoxicated, had a swollen eye, and was angrily
threatening the man with the gun. Bond spoke with Deloatch and
attempted to calm him. Bond testified that Deloatch's mother had
recently died and that Deloatch was upset, crying, and uncaring
about his own conduct. Deloatch announced that he intended to
shoot the man. After Bond reasoned with Deloatch, Deloatch gave
him the gun.
Bond then coaxed Deloatch into his car and drove with
Deloatch to Gwendolyn Golden's residence. Golden was Bond's
- 8 -
romantic friend and a person that Deloatch respected. Bond
explained to Golden what had occurred and asked to leave the gun
with her until Deloatch was sober. She agreed. Bond placed the
gun on top of a high cabinet in Golden's kitchen and left with
Deloatch.
Two years later, when the police were searching Golden's
residence in connection with another matter, a police officer
found the gun atop the cabinet. The gun had dust on it and had
been undisturbed. The officer testified that the accumulation of
dust indicated to him that the gun had been on the cabinet for a
long time. Golden testified that she had forgotten about the gun
until the police found it.
After the discovery of the gun, another police officer went
to Bond's store and questioned Bond about the gun. Bond
testified that he then remembered the gun and explained the
incident involving Deloatch. The officer arrested Bond for
possession of a firearm after having been convicted of a felony.
After his arrest, Bond gave the police a written statement in
which he stated that he had taken the gun from Deloatch to "keep
a person from getting hurt" and that he placed the gun atop a
cabinet over the sink at Golden's residence.
The trial judge ruled that Bond's initial, actual possession
was justifiable. That ruling was based on the following
findings:
Mr. Bond, in this case I would agree with
what your lawyer said that the Court
certainly would not find you guilty of
- 9 -
possessing a firearm under the circumstances
that you took it. No question you took it
under circumstances where you were trying to
prevent someone from getting hurt and
rightfully so. You did the right thing, no
question. I don't think . . . [any] Judge,
. . . [or any] jury in the world would
convict you of possessing a firearm under
those circumstances because you didn't really
intentionally possess it at that time. The
problem arises after that.
The trial judge then found Bond guilty of constructive
possession of the gun because the gun remained in Golden's
residence. The judge stated the following rationale for the
conviction:
Now, the code does not allow a convicted
felon to hold a firearm for someone else as
an agent, fiduciary or any capacity. A
convicted felon is not allowed to hold a gun
for someone, other than some emergency
purposes. And obviously the emergency ceased
to exist once the cooling period was over and
at some point even maybe you could say well,
you should have kept it a day and let him
sober up. Maybe so, but at some point that
ended, that emergency situation ended.
There's no question in the Court's mind,
Mr. Bond, under the law you had constructive
possession of this weapon. You put it where
it was found. Mr. Bond had access, no
question, to the home. There's no question
he came and went from that home. I agree
it's not your home, you don't live there, but
Mr. Bond did come and go. That's what the
testimony is and sometimes he spent the night
there.
That reasoning and the evidence in the record are insufficient to
support the conviction.
In Hancock, we ruled as follows:
Liability under Code § 18.2-308.2 requires
proof that the accused "knowingly and
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intentionally possess[ed] . . . any firearm."
Thus, the Commonwealth must prove a
defendant's actual knowledge of the firearm.
The trial judge misunderstood the requisite
mental state when he ruled that "should have
known" was sufficient. We can affirm this
appeal only if the Commonwealth proved beyond
a reasonable doubt that [the defendant] had
actual knowledge of the presence of the
firearm, i.e. "knowingly and intentionally
possess[ed]" the firearm.
21 Va. App. at 469, 465 S.E.2d at 140 (citations omitted).
The evidence in this case proved that after Bond defused
Deloatch's anger and gained possession of the gun, he took the
gun to Golden's residence because he believed that Deloatch
respected Golden and, thus, would not seek to obtain it from her
while he was intoxicated. No evidence proved Bond knowingly or
intentionally retained possession of the gun after he delivered
it to Golden's residence. Golden testified she had forgotten
that the gun was atop the cabinet. Bond also testified that he
had forgotten about the gun until the police questioned him about
the gun atop the cabinet. In addition, the evidence proved that
shortly after the incident Deloatch was incarcerated and likely
was unable to obtain the gun from Golden.
Indeed, the trial judge clearly accepted as a fact that Bond
had forgotten that the firearm was in Golden's residence. The
judge stated the following at sentencing:
Now, I am going to state for the record,
Mr. Bond, in this case that although the
Court has found that you are in constructive
possession of the firearm I think the
evidence indicates that at least from the
Commonwealth's own evidence that you had not
handled this firearm, that what you said
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about where you put the firearm is accurate.
That you put it up there, that you had not
gone back and forgotten the firearm, that
type of thing. I think the evidence probably
does support that.
Nevertheless, the trial judge reasoned:
But the firearm was certainly in a place
where you had access on a regular basis. You
put it there, you knew where it was, and for
that reason the Court is required under the
law to make the finding that it made.
In effect, the trial judge ruled that although Bond had forgotten
that the gun was above the cabinet in Golden's residence, he
should have known the gun was in the residence because he placed
it there two years earlier and later visited Golden in the
residence. That rationale cannot support the conviction. See
id.
Furthermore, proof that Bond was present in Golden's
residence at various times during the two year period did not
negate the undisputed evidence that Bond had forgotten that the
gun was atop the cabinet. Thus, the trial judge could not
logically have found that Bond "knowingly and intentionally
possess[ed]" the gun. Code § 18.2-308.2; see also Staples v.
United States, 511 U.S. 600, 623 (1994) (Ginsburg, J.,
concurring) ("'Knowingly possessed' logically means 'possessed
and knew that he possessed.'").
Bond had no preconceived design to obtain or keep the gun.
He put himself at risk of great injury or death when he disarmed
Deloatch. Bond's conduct manifested the principle "that the law
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promotes the achievement of higher values at the expense of lower
ones and that '"sometimes the greater good for society will be
accomplished by violating the literal language of the criminal
law."'" State v. Crawford, 521 A.2d 1193, 1197 (Md. 1987)
(citation omitted). Because the evidence proved that Bond forgot
about the gun after he justifiably obtained the gun from Deloatch
and placed it in Golden's residence, the Commonwealth failed to
prove beyond a reasonable doubt that Bond constructively
possessed the gun while it remained undisturbed on the cabinet.
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