James Junior Fountain v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
JAMES JUNIOR FOUNTAIN
MEMORANDUM OPINION * BY
v. Record No. 0262-01-2 JUDGE ROBERT J. HUMPHREYS
MAY 7, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Andrea S. Lantz, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
James Junior Fountain appeals his conviction, after a bench trial,
for possession of a firearm after having been previously convicted
of a felony, in violation of Code § 18.2-308.2. 1 Fountain
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Fountain was charged with concealed possession of "a weapon
designed or intended to propel a missile of any kind," after
having been previously convicted of a felony, in violation of Code
§ 18.2-308.2. Fountain was correctly indicted and arraigned on
this charge. However, both the conviction and sentencing orders
state that Fountain was convicted of being a "felon in possession
of a firearm." The Commonwealth contends in their brief on appeal
that the conviction and sentencing orders demonstrate a clerical
error in this regard; we granted the Commonwealth leave to request
that the trial court consider a motion to correct the orders, nunc
pro tunc, and the trial court entered the orders December 21,
2001, nunc pro tunc, February 15, 2001, correcting the clerical
error. Fountain does not challenge this on appeal and argues on
contends the trial court erred in finding the evidence sufficient
as a matter of law to support the conviction. 2 We disagree and
affirm the conviction.
When the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it. 3
So viewed, the evidence presented at trial established that on the
evening of September 18, 1998, Officer John McKay, of the
Albemarle Police Department, was patrolling the area of the Milton
Boat Landing when he observed a vehicle parked at the bottom of
the landing, past a sign indicating the area was closed. McKay
found Fountain and a female inside the car, which he described as
a "small, two seat" 1986 Nissan 300ZX. McKay informed Fountain
that the area was closed and asked to see his driver's license.
brief only that the weapon was not a "firearm" and that his
conviction for "unlawfully, feloniously, knowingly and
intentionally, after having been convicted of a felony, carrying
on or about his person, hidden from common observation, a weapon
designed or intended to propel a missile of any kind," was in
error.
2
Fountain was also tried on one count of possession of
cocaine. However, the trial court acquitted him of this charge.
3
Cook v. Commonwealth, 219 Va. 769, 770, 250 S.E.2d 361, 362
(1979).
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Fountain presented his license to McKay. After running a "wanted
check" on his license, McKay learned that there was an outstanding
capias for Fountain. McKay then placed Fountain under arrest and
put him in his patrol car.
Upon searching Fountain's car, McKay found marijuana, rolling
papers, razor blades and Fountain's wallet in the console of the
car. McKay also found a "small corncob pipe" in front of the
driver's seat, "where Fountain's feet would have been." Finally,
he found a pellet gun "stuffed" between the driver's seat and the
console. McKay could not see the gun when Fountain was in the car
"because his leg was next to it." However, after Fountain and the
passenger had gotten out of the car, when McKay "stuck [his] head
in . . . [he] could see the [pellet gun] . . . ." He stated,
"very little . . . just the very back of the grip" of the gun
protruded above the level of the seat. Fountain claimed that the
gun belonged to his wife and that he had forgotten it was in the
car. Fountain had been previously convicted of malicious
wounding, a felony.
At the close of the Commonwealth's evidence, Fountain raised a
motion to strike arguing that the Commonwealth had failed to
establish concealment, as well as Fountain's knowledge of the
presence of the gun at the time he was approached by McKay. The
trial court denied the motion. Fountain renewed his motion at the
close of the evidence. It was again denied by the trial court.
On appeal, Fountain contends only that the trial court erred in
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finding the evidence sufficient to support the conviction because
the Commonwealth failed to establish that Fountain concealed the
gun, or that he intended to conceal the gun.
Code § 18.2-308.2 provides as follows, in relevant part:
A. It shall be unlawful for (i) any person
who has been convicted of a felony . . . to
knowingly and intentionally carry about his
person, hidden from common observation, any
weapon described in subsection A of
§ 18.2-308.
Pursuant to Code § 18.2-308(A), as it read at the time of the
offense, it is a crime to conceal from common observation, "any
pistol, revolver, or other weapon designed or intended to propel
a missile of any kind . . . or [] any weapon of like kind as
those enumerated in this subsection . . . ." 4
Referring to Code § 18.2-308, the Supreme Court of Virginia
has stated "'[t]he purpose of the statute [is] to interdict the
practice of carrying a deadly weapon about the person, concealed,
and yet so accessible as to afford prompt and immediate use.'" 5
Code § 18.2-308.2(A) defines a concealed weapon as one "hidden
from common observation." "Such a weapon is 'hidden from common
observation when it is observable[,] but is of such deceptive
4
In 2001, the General Assembly amended the section by
inserting the phrase "by action of an explosion of any
combustible material" at the end of clause (i) in subsection A.
5
Schaaf v. Commonwealth, 220 Va. 429, 430, 258 S.E.2d 574,
574-75 (1979) (quoting Sutherland's Case, 109 Va. 834, 65 S.E.
15 (1909)).
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appearance as to disguise the weapon's true nature.'"6 Therefore,
where a weapon is "hidden from all except those with an unusual or
exceptional opportunity to view it," it is hidden from public view
and "concealment of it in this fashion [is] unlawful." 7 Here, the
evidence, when viewed in the light most favorable to the
Commonwealth, demonstrates that initially McKay was unable to see
the gun "because [Fountain's] leg was next to it." Further, once
Fountain got out of the car and McKay "stuck [his] head in the
car," he could see "very little" of the pellet gun – namely, "just
the very back of the grip" of the gun, protruding above the seat.
From this evidence, the fact finder could infer beyond a
reasonable doubt that the pellet gun was "hidden from all except
those with an unusual or exceptional opportunity to view it" and
therefore, that it was concealed from public view. 8 We do not
address Fountain's argument concerning whether the Commonwealth
established he intended to conceal the gun, or whether he made
some conscious effort to conceal it, as our review of the record
reveals that Fountain raised no such argument below. Instead,
Fountain merely argued that the gun was not factually concealed.
6
Main v. Commonwealth, 20 Va. App. 370, 372, 457 S.E.2d
400, 401 (1995).
7
Id. at 372, 373, 457 S.E.2d at 402.
8
See id. at 371, 457 S.E.2d at 401 ("We hold that carrying
a weapon in one's back pocket, covered by a duffle bag,
constitutes carrying a concealed weapon if the handle of the
weapon, the only part of the weapon extending outside of the
pocket, is concealed by the duffle bag.").
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Thus, Rule 5A:18 bars our consideration of this issue. 9 Further,
the record reflects no reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18. 10
For the foregoing reasons, we affirm the judgment of the trial
court.
Affirmed.
9
See Rule 5A:18; see also Ohree v. Commonwealth, 26 Va.
App. 299, 308, 494 S.E.2d 484, 488 (1998) ("The Court of Appeals
will not consider an argument on appeal which was not presented
to the trial court.").
10
Nevertheless, the evidence clearly demonstrated that
Fountain had knowledge the gun was in the car, as he told
Officer McKay that "he'd forgot[ten] that it was in the car."
Further, the gun was found between the driver's seat and the
console of the "small, two seat, sports" car. Thus, it was
directly next to Fountain as he operated the car. Further,
Fountain's wallet was in the console between the seats. From
these facts, it is reasonable to assume that the gun was at
least visible to Fountain while he was in the car.
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