Howard Allen Groffel v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judge Beales and Retired Judge Bumgardner*
Argued at Richmond, Virginia
PUBLISHED
HOWARD ALLEN GROFFEL
OPINION BY
v. Record No. 0485-18-2 CHIEF JUDGE MARLA GRAFF DECKER
AUGUST 20, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NEW KENT COUNTY
B. Elliott Bondurant, Judge
Ivan D. Fehrenbach (D.R. Dansby, Ltd, on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Howard Allen Groffel appeals four of his five convictions and sentences for transporting
a firearm while subject to a protective order in violation of Code § 18.2-308.1:4(A) and his
conviction for possessing ammunition after conviction of a felony in violation Code
§ 18.2-308.2. He argues that the punishments for these convictions violate the constitutional
prohibition against double jeopardy. For the reasons that follow, we affirm the convictions and
sentences for transporting a firearm while subject to a protective order. However, we reverse
and remand the case for reconsideration of the convictions and sentences for possession of a
firearm and possession of ammunition in a manner consistent with this opinion.
*
Retired Judge Bumgardner took part in the hearing and decision of this case by
designation pursuant to Code § 17.1-400(D).
I. BACKGROUND1
On April 25, 2017, the appellant was convicted in general district court and sentenced to
jail. He escaped custody by walking away while unattended. When law enforcement captured
him that night, he had a revolver strapped to his ankle.
At the time of the escape and apprehension, the appellant was subject to five separate
protective orders. Of these five protective orders, three were obtained by adults, each of whom
petitioned on his or her own behalf. The other two orders were entered by the juvenile and
domestic relations district court to protect the appellant’s two children.
While in jail, the appellant called a neighbor and asked him to move and sell property
that the appellant kept in his shed. In the shed was a cabinet, in which the neighbor found an
AK-47 assault rifle, a “12-gauge Winchester pump shotgun,” ammunition for the two firearms,
and ammunition for a “30-30” rifle. Captain John McLaughlin with the New Kent County
Sheriff’s Office, who had monitored the phone call between the appellant and his neighbor, went
to the neighbor’s house and collected the firearms and ammunition as evidence.
The Commonwealth charged the appellant, in pertinent part, with five counts of
transporting a firearm while subject to a protective order and two counts of possessing a firearm
or ammunition after previously being convicted of a felony. The appellant filed a motion to
dismiss in which he argued that his constitutional protection against double jeopardy was
violated by the five charges of transporting a firearm while subject to a protective order and
additionally by the two charges of possession of a firearm or ammunition by a convicted felon.
1
Although the facts are undisputed at this point in the case, we note that appellate courts
“are bound by the underlying factual issues determined by the fact finder unless they are plainly
wrong or unsupported by the evidence.” Commonwealth v. Davis, 290 Va. 362, 368-69 (2015)
(quoting Loudoun Hosp. Ctr. v. Stroube, 50 Va. App. 478, 493 (2007)).
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The trial court denied the motion.2 In doing so, the judge commented that the five protective
orders were issued by different courts to protect different individuals. Regarding the possession
charges, the trial court noted that the separate charge for possession of ammunition was based on
ammunition that did not match the types of firearms found with it.
Following the presentation of the evidence, the trial court found the appellant guilty of
five counts of transporting a firearm while subject to a protective order and two counts of
possessing a firearm or ammunition after conviction for a felony.3 The court sentenced him to a
total of fifteen years in prison, with six years suspended, for these offenses.
II. ANALYSIS
The appellant contends that he received multiple convictions and punishments for the
same offense in violation of the constitutional protection against double jeopardy.
“The Fifth Amendment to the Constitution of the United States declares that no person
shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” Severance v.
Commonwealth, 295 Va. 564, 571-72, 572 n.8 (2018) (quoting U.S. Const. amend. V) (noting
that the Virginia Constitution provides the same protections). This prohibition includes
protection from “multiple punishments for the same offense.” Id. at 572 (quoting
Commonwealth v. Gregg, 295 Va. 293, 298 (2018)). “We review de novo whether ‘multiple
punishments have been imposed for the same offense in violation of the double jeopardy
clause.’” Gregg, 295 Va. at 296 (quoting Johnson v. Commonwealth, 292 Va. 738, 741 (2016)).
2
The court granted the Commonwealth’s motions to dismiss by nolle prosequi the charge
of carrying a concealed weapon and one charge of possession of ammunition by a convicted
felon.
3
The appellant was also convicted of escape by a prisoner, grand larceny, four counts of
credit card theft, entering a motor vehicle to commit a crime, and a third count of possession of a
firearm within ten years of conviction of a felony. Those convictions are not before the Court at
this stage of the appeal because the petition for appeal as to the related assignments of error was
denied.
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“When considering multiple punishments for a single transaction, the controlling factor is
legislative intent.” Id. at 298 (quoting Kelsoe v. Commonwealth, 226 Va. 197, 199 (1983)). In
determining legislative intent, the court first looks to the plain language of the statute. Baker v.
Commonwealth, 284 Va. 572, 576 (2012). “If the language is clear and unambiguous, [an
appellate court] will assign the statute its plain meaning.” Browning-Ferris Indus. of S. Atl. v.
Residents Involved in Saving the Env’t, Inc., 254 Va. 278, 284 (1997). Additionally, we must
“give effect to the legislature’s intention as expressed by the language used unless a literal
interpretation of the language would result in a manifest absurdity.” Conyers v. Martial Arts
World of Richmond, Inc., 273 Va. 96, 104 (2007). On the other hand, if the statutory language is
ambiguous, the court must rely on “the gravamen of the offense to determine the legislature’s
intent” regarding the permissible unit of prosecution. See Baker, 284 Va. at 576; see also
Johnson, 292 Va. at 741-42 (examining legislative intent in order to determine “the unit of
prosecution”); Acey v. Commonwealth, 29 Va. App. 240, 250-51 (1999) (analyzing the
gravamen of an offense in considering “the unit of prosecution by which the state may assess
punishment”).
The appellant argues that the constitutional protection against double jeopardy precludes
his multiple convictions and sentences under Code § 18.2-308.1:4(A) for transporting a firearm
while subject to multiple protective orders. He also contends that his two convictions and
punishments under Code § 18.2-308.2 for simultaneous possession of a firearm and ammunition
violate double jeopardy.
A. Protective Orders Under Code § 18.2-308.1:4(A)
Code § 18.2-308.1:4(A) provides, in pertinent part, that “[i]t is unlawful for any person
who is subject to . . . a protective order . . . to purchase or transport any firearm while the order is
in effect.” The appellant’s transportation of the firearm found strapped to his ankle when he was
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captured and arrested while subject to five protective orders was the basis for five separate
convictions and corresponding sentences. The question for this Court to resolve is whether the
statute penalizes the act of purchasing or transporting a firearm while subject to multiple
protective orders as a single offense or as multiple ones subject to separate punishments.
In answering this question, we first look to the statutory language. See Baker, 284 Va. at
576. Only if the plain text is ambiguous do we “us[e] the gravamen of the offense to determine
the legislature’s intent.” Id.
The language in Code § 18.2-308.1:4(A) is ambiguous on this point because it “can be
understood in more than one way.” See id. (quoting Boynton v. Kilgore, 271 Va. 220, 227 n.8
(2006)); see also Acey, 29 Va. App. at 250 (analyzing the gravamen of the offense of possession
of a firearm by a convicted felon in violation of Code § 18.2-308.2). On the one hand, the statute
prohibits the purchase or transportation of a firearm by a person subject to “a protective order.”
The use of the singular “a” suggests that for each protective order in place, the act of purchase or
transportation of a firearm constitutes a separate offense. Johnson, 292 Va. at 742 (holding that
the statutory phrase “‘a’ felony” provided that “each felony charge could serve as the predicate
of a failure to appear conviction”). On the other hand, the language “any person who is subject
to” suggests that the statute describes a class of people who are forbidden from buying or
transporting firearms and that the prohibited conduct is the purchase or transportation regardless
of the number of protective orders in place. See United States v. Dunford, 148 F.3d 385, 388-89
(4th Cir. 1998) (holding that possession of a firearm or ammunition is a single offense regardless
of the number of disqualifying classes to which a defendant belongs).
As a result of this ambiguity, we must look to the gravamen, or essence, of the crime.
We conclude that the purpose of Code § 18.2-308.1:4 is to protect the individuals who are the
subjects of the protective orders. In some circumstances, a petitioner obtains a protective order
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on his or her own behalf. See generally Code §§ 16.1-253.1, -279.1 (allowing issuance of a
protective order against an allegedly abusive person in order “to protect the health and safety of
the petitioner [or any] family or household member[] of the petitioner”). In others, “[u]pon the
motion of any person or upon the court’s own motion,” a court may enter a protective order to
protect a child who has been subjected to parental abuse or neglect. See Code §§ 16.1-253(A),
(F), -278.2(C). Each protective order entered to safeguard a unique principal protected person
(the principal), whether a petitioner or a child of an allegedly abusive or neglectful parent, “has a
separate existence with separate consequences and effects.” See Johnson, 292 Va. at 742
(discussing summonses and felony charges).4 The focus of Code § 18.2-308.1:4 must be upon
the principal whom each protective order is in place to protect. Therefore, the gravamen of the
offense of the purchase or transportation of a firearm by a person subject to a protective order is
the occurrence of the act while the protective order is in effect.
This purpose and gravamen contrast with those of a statute prohibiting possession of a
firearm. The purpose of a firearm possession statute is to protect society generally from the
individual who belongs to a described class or group such as previously convicted felons. See
Baker, 284 Va. at 578. Consequently, the gravamen of the offense of possession of a firearm by
a convicted felon is the possession itself. See Acey, 29 Va. App. at 250. Here, the gravamen of
an offense under Code § 18.2-308.1:4 is not possession, but it is the purchase or transportation of
a firearm while the protective order is in effect because the purpose of the statute is to protect
each principal.
4
Johnson distinguished “possessory offenses like the possession of illegal drugs.”
Johnson, 292 Va. at 743 n.1. The Court reasoned that the statute at issue in that case, for the
offense of failure to appear, resulted from a different legislative intent than statutes criminalizing
possession. Id. As noted infra, Code § 18.2-308.1:4(A) likewise has a different legislative intent
than general possession statutes and consequently the gravamen of the offense is not possession.
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In support of his argument that the possession is the gravamen of an offense under Code
§ 18.2-308.1:4, the appellant relies on cases interpreting 18 U.S.C. § 922(g). See United States
v. Borer, 394 F.3d 569, amended by 412 F.3d 987 (8th Cir. 2015); United States v. Baker, 197
F.3d 211 (6th Cir. 1999); Dunford, 148 F.3d 385; United States v. Ocampo, 919 F. Supp. 2d 898
(E.D. Mich. 2013). The federal subsection prohibits, in pertinent part, “any person” within the
listed categories from “possess[ing] . . . any firearm or ammunition.” 18 U.S.C. § 922(g). The
categories include people who are subject to protective orders, convicted felons, fugitives from
justice, “unlawful user[s] of or addicted to any controlled substance,” people who have been
committed to a mental institution, aliens unlawfully in the United States, and those who have
been convicted of domestic violence. 18 U.S.C. § 922(g)(1)-(5), (8)-(9). While the United
States Congress chose to prohibit these categories of individuals from having access to firearms
by grouping them together in a subsection as a single “possession” offense, the Virginia
legislature enacted separate statutes to restrict access, possession, and transportation of firearms
for certain groups.5 This distinction signifies the Virginia General Assembly’s conclusion that
the different groups of individuals under restrictions are dissimilar and subject to different
limitations as well as penalties. As a result of this contrast between the federal and state law, the
federal cases interpreting 18 U.S.C. § 922(g) are inapposite to application of Code
§ 18.2-308.1:4.
The appellant also relies on the principle that if the statutory language at issue can be read
to impart two reasonable and contradictory interpretations, a court should construe the statute in
the accused’s favor. See McGinnis v. Commonwealth, 296 Va. 489, 504 (2018). However, this
5
Those groups include persons acquitted by reason of insanity, persons adjudicated
legally incompetent or mentally incapacitated, persons involuntarily admitted or ordered to
outpatient treatment, persons convicted of certain drug offenses, convicted felons, and aliens and
persons not admitted for permanent residence. See Code §§ 18.2-308.1:1, -308.1:2,
-308.1:3, -308.1:5, -308.2, -308.2:01.
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rule, known as the “‘rule of lenity,’” “does not permit a[n appellant] to benefit from an
unreasonably restrictive interpretation of the statute.” Id. (quoting Blake v. Commonwealth, 288
Va. 375, 386 (2014)). In other words, the general principle cannot apply to subvert the
legislature’s intent when such intent is ascertainable from the statute based on its language,
purpose, or gravamen. See Turner v. Commonwealth, 295 Va. 104, 109, cert. denied, 139 S. Ct.
123 (2018); Spratley v. Commonwealth, 69 Va. App. 314, 320 (2018). Accordingly, the
legislature’s intent to provide for multiple units of prosecution under Code § 18.2-308.1:4 based
on multiple protective orders in place to safeguard different principals outweighs application of
the rule of lenity.
Turning to the facts of this case, while the appellant was subject to five different
protective orders protecting five different principals, he transported a firearm. This action
constituted five different violations of Code § 18.2-308.1:4(A). This conclusion comports with
the purpose of the statute to further safeguard the principal whom each of the orders was entered
to protect. It is also consistent with the gravamen of the offense, the purchase or transportation
of a firearm by a person subject to a protective order while the protective order is in effect.
For these reasons, the appellant’s single act of transporting a firearm logically resulted in
separate and distinct charges based on the five protective orders entered to protect five different
principals. The five convictions and sentences did not violate the appellant’s constitutional
protection against double jeopardy. Consequently, we affirm the convictions and sentences for
transportation of a firearm by a person subject to a protective order.
B. Firearms and Ammunition Under Code § 18.2-308.2
Code § 18.2-308.2, in pertinent part, prohibits “any person who has been convicted of a
felony” from “knowingly and intentionally possess[ing] or transport[ing] any firearm or
ammunition for a firearm.” Code § 18.2-308.2(A). The question raised by the appellant is
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whether the statute penalizes the simultaneous possession of firearms and of separate
ammunition that he stored in his shed as one offense or two.
The first step in this analysis is to examine the statutory text. Baker, 284 Va. at 576. The
language in Code § 18.2-308.2 is ambiguous on this point because it “can be understood in more
than one way.” See id. (quoting Boynton, 271 Va. at 227 n.8); see also Acey, 29 Va. App. at 250
(analyzing the gravamen of the offense). Certainly, prohibition from possession of “any firearm
or ammunition for a firearm” can reasonably be read to allow two units of prosecution for a
defendant who possesses a firearm and ammunition at the same time and place. On the other
hand, the statute does not expressly provide that simultaneous possession of a firearm and
ammunition can constitute separate charges. See United States v. Clark, 184 F.3d 858, 871 (D.C.
Cir. 1999) (holding that 18 U.S.C. § 922(g)(1), which prohibits a convicted felon from
possessing “any firearm or ammunition,” is ambiguous on this point); cf. 720 Ill. Comp. Stat.
5/24-1.1(e) (“The possession of each firearm or firearm ammunition in violation of this Section
constitutes a single and separate violation.”).
In two significant cases, the Supreme Court of Virginia and this Court analyzed Code
§ 18.2-308.2 and the gravamen of the offense. See Baker, 284 Va. at 576-77; Acey, 29 Va. App.
at 250. In Acey, 29 Va. App. at 250, this Court examined the statute in the context of the
number of firearms possessed at one time. It held that since “the possession of a firearm by a
felon is, of itself, the dangerous act, the number of weapons with which a felon is armed [is]
irrelevant.” Id. Consequently, the Court held that a single act of possession of multiple guns is
one offense under Code § 18.2-308.2. Id. at 251.
In Baker, 284 Va. at 576-77, the Supreme Court considered the same statute in the
context of the duration of the offense of possession of a firearm by a convicted felon. Citing
Acey with approval, the Court held that the gravamen of the offense was each independent
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“instance of possession.” Id. at 576-78. It reasoned that in enacting Code § 18.2-308.2, the
legislature “recognized that each act of possessing the firearm places the public in a heightened
level of danger” and concluded that “separate instances of possession, and therefore of
heightened danger to the community, [may] be punished separately.” Id. at 577 (emphasis
added).
Acey and Baker establish that the offense of possession of a firearm or ammunition by a
convicted felon punishes “each separate incident of possession,” Baker, 284 Va. at 577, and not
the number of items possessed together, Acey, 29 Va. App. at 250. See also Clay v.
Commonwealth, 36 Va. App. 433, 436 (2001) (holding that separate possession offenses exist
when “multiple firearms were separately possessed at different times”). Under the current law,
this Court has already made clear that the hypothetical defendant who possesses one hundred
guns at one time could be penalized only once under the statute.6 Acey, 29 Va. App. at 250
(“Whether the felon bears one or one hundred firearms, the felon is ‘dangerously armed.’”).
Based on the facts of the instant case, if both the possession convictions and sentences were to
stand, it would mean that a defendant who simultaneously possesses one firearm and ammunition
to a different weapon could be punished for two offenses. This reasoning does not comport with
the analysis in Acey nor does it follow the legislature’s intent. The appellant is not inherently
more dangerous to the public than the hypothetical defendant with numerous weapons.
Appellate courts should not interpret a statute in such a way that “forces” it “into an ‘internally
inconsistent’ conflict.” See Tvardek v. Powhatan Vill. Homeowners Ass’n, Inc., 291 Va. 269,
280 (2016) (quoting Butler v. Fairfax Cty. Sch. Bd., 291 Va. 32, 37 (2015)). Consequently, we
6
By not amending Code § 18.2-308.2 to clearly impose multiple penalties for
simultaneous possession of multiple weapons, the General Assembly has demonstrated its
“approval” of the interpretation set forth in Acey, 29 Va. App. at 250-51. See Cygnus
Newport-Phase 1B, LLC v. City of Portsmouth, 292 Va. 573, 582 (2016) (quoting Manchester
Oaks Homeowners Ass’n v. Batt, 284 Va. 409, 428 (2012)).
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conclude that the holding in Acey regarding simultaneous possession of multiple firearms
extends to simultaneous possession of a firearm and ammunition. Code § 18.2-308.2 does not
separately penalize the appellant’s possession of firearms and ammunition at the same time in the
shed.7
The Commonwealth stresses that the appellant’s 30-30 caliber ammunition could not be
used in either of his firearms that he kept with it in the shed and that as a result the use of that
ammunition would necessarily occur at a different time and place from the guns with which it
was stored. However, Code § 18.2-308.2 addresses only possession of the prohibited items to
sustain a conviction, not their actual use. The fact that some of the ammunition in the appellant’s
possession did not pair with the firearms found with it does not justify separate convictions for
simultaneous possession under the statute in question.
We hold that the appellant should have been subject to only one punishment under Code
§ 18.2-308.2 for the firearms and ammunition which he stored in the shed. See generally
Dunford, 148 F.3d at 389-99 (holding that ammunition stored with firearms supported only one
conviction of illegal possession of “any firearm or ammunition”). Consequently, we reverse and
remand in part to the trial court.
7
This holding is consistent with the general agreement across jurisdictions that a
legislative proscription against possession by a convicted felon of “any firearm or ammunition”
does not impose multiple punishments for simultaneous possession of a firearm and ammunition.
See, e.g., United States v. Meza, 701 F.3d 411, 431 (5th Cir. 2012); United States v. Jones, 601
F.3d 1247, 1259 (11th Cir. 2010); United States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006)
(en banc) (per curiam); Clark, 184 F.3d at 872; Dunford, 148 F.3d at 390; United States v. Keen,
104 F.3d 1111, 1119-20 (9th Cir. 1996); State v. Auwae, 968 P.2d 1070, 1081 (Haw. Ct. App.
1998), overruled in part on other grounds, State v. Jenkins, 997 P.2d 13, 38 (Haw. 2000).
Compare Brown v. State, 219 So. 3d 866, 867 (Fla. Dist. Ct. App. 2017) (per curiam), with
Commonwealth v. Gaskins, 727 N.E.2d 1215, 1216 (Mass. App. Ct. 2000).
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III. CONCLUSION
For the foregoing reasons, we hold that the convictions and sentences for transportation
of a firearm, in violation of five different protective orders, did not violate double jeopardy, and
we affirm that portion of the trial court’s judgment. However, we hold that the trial court erred
in imposing two sentences under Code § 18.2-308.2 for simultaneous possession of a firearm and
ammunition. Accordingly, we remand this case to the trial court to allow the Commonwealth to
elect one conviction and sentence for the appellant’s violation of Code § 18.2-308.2. See
Andrews v. Commonwealth, 280 Va. 231, 288 (2010) (“In a typical case where a defendant has
been subject to impermissible multiple punishments, “the only remedy consistent with [the
legislature’s] intent is for the [trial court], where the sentencing responsibility resides, . . . to
vacate one of the underlying convictions.” (first and second alterations in original) (quoting Ball
v. United States, 470 U.S. 856, 864 (1985))); cf. Gregg, 295 Va. at 301 (holding that the
Commonwealth must elect between two sentences then, following election, requiring the trial
court to vacate the other sentence). Thereafter, the court shall vacate the other conviction and
sentence under that statute. See Gregg, 295 Va. at 301.
Affirmed in part, and reversed and remanded in part.
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Bumgardner, R.J., concurring, in part, and dissenting, in part.
I would reverse on both issues. I disagree with the result caused by affirming five
convictions for transporting a firearm while subject to five protective orders.
Code § 18.2-308.1:4 (transportation of a firearm by persons subject to protective orders)
and Code § 18.2-308.2 (possession of firearms by convicted felons) have the same purpose.
They proscribe access to firearms by persons whose adjudicated conduct indicates they could be
dangerous if armed. The majority interprets Code § 18.2-308.1:4 to permit a separate conviction
for each separate protective order in effect during a single act of buying or transporting a firearm.
However, Code § 18.2-308.2 would support only one conviction for possession or transporting a
firearm by a felon regardless of the number of felony convictions incurred.
Nothing in the evolution and expansion of this portion of Chapter 7, Title 18.2 suggests
the legislature intended to create such an inconsistent result: separate protective orders create
separate offenses for a single act of buying or transporting; separate felony convictions do not
create separate offenses for a single act of possessing or transporting.
The gravamen of both offenses is the same: access to firearms by dangerous persons.
The number of crimes committed by acts of possession or transportation should not depend on
whether the forbidden status is defined by a protective order or a felony conviction.
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