Jones v. Commonwealth

Opinion

COLEMAN, J.

Lonnie Jones was convicted in a bench trial of possessing a firearm after having been convicted of a felony in violation of Code § 18.2-308.2. Jones contends that the evidence does not support his conviction because a BB handgun is not a ‘ ‘firearm’ ’ within the meaning of Code § 18.2-308.2. We hold that Code § 18.2-308.2 does not prohibit a convicted felon from possessing or transporting a BB gun. Therefore, we reverse the conviction and dismiss the charge.

On March 21, 1991, Jones and another man entered an Arby’s restaurant in Lynchburg. Jones approached an employee working behind the counter, pulled out a BB handgun, and demanded all the money in the cash register. Later that morning, the police apprehended Jones while he was driving a vehicle that contained the money taken from Arby’s and the BB handgun that Jones had used to commit the robbery. A grand jury indicted Jones for robbery, use of a firearm in the commission of a robbery, and possession of a firearm after having been convicted of a felony in violation of Code § 18.2-308.2. Jones was tried by a jury and convicted of robbery and the use of a firearm in the commission of robbery. No issues are raised on this appeal concerning those convictions. In a separate bench trial, the Commonwealth proved that Jones had been convicted of a robbery in 1979, and, based on Jones’ possession of the BB handgun, the judge found Jones guilty of violating Code § 18.2-308.2. This appeal arises from that conviction.

Code § 18.2-308.2 provides that “[i]t shall be unlawful for any person who has been convicted of a felony ... to knowingly and intentionally possess or transport any firearm.” Code § 18.2-308.2 does not define “firearm.” The legislature has assigned various meanings to the term “firearm” in other sections of Title 18.2.¹ Traditionally, a firearm is considered to be any weapon 4 ‘from which a shot is discharged by gunpowder.” Webster’s Third New International Dictionary 854 (1981). However, when the meaning of a word in a statute may have a special or limited meaning, the meaning of the word must be construed in a manner that gives full effect to the legislative intent embodied in the entire statutory enactment. Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 157, 384 S.E.2d 622, 625 (1989); Crews v. Commonwealth, 3 Va. App. 531, 535-36, 352 S.E.2d 1, 3 (1987). Therefore, in determining the meaning of “firearm” as used in Code § 18.2-308.2, we look to the meaning of that term in other parts of Title 18.2 and to the statutory scheme of Title 18.2, particularly the purpose of Code § 18.2-308.2, to ascertain the meaning that can be reconciled with other parts of the act. See Commonwealth Natural Resources, Inc. v. Commonwealth, 219 Va. 529, 536, 248 S.E.2d 791, 795 (1978); Morris v. Morris, 4 Va. App. 539, 543-44, 359 S.E.2d 104, 107 (1987). Furthermore, because Code § 18.2-308.2 is a criminal statute, it must be construed strictly against the Commonwealth and in favor of the accused. Johnson v. Commonwealth, 211 Va. 815, 819, 180 S.E.2d 661, 664 (1971). When Code § 18.2-308.2 is so construed, the word “firearm” in a statute designed to restrict possessing or transporting a specific class of dangerous weapons cannot be read to encompass a BB handgun, but rather is intended to include “firearms” which are devices that propel a projectile by an explosion or discharge of gunpowder.

The legislature has assigned a meaning other than the traditional definition to the term “firearm” in at least one section of Title 18.2. See Code § 18.2-282. Of the thirty-three sections that deal with the unlawful use, possession or transfer of “firearms,” only five provide a definition. See Code §§ 18.2-282(c), 18.2-284, 18.2-287.4, 18.2-308.2:2(G) and 18.2-433.1. Only Code § 18.2-282(c) expands the definition of “firearm” to include “any weapon in which ammunition may be used or discharged, by explosion, or pneumatic pressure.” (emphasis added). In addition, however, the Supreme Court has held that the term “firearm” as used in Code § 18.2-53.1, proscribing use of a ‘ ‘firearm’ ’ in the commission of a felony, includes anything that the victim reasonably perceives to be a firearm, even though it may not in actuality be a weapon or be capable of firing a projectile by any means. Holloman v. Commonwealth, 221 Va. 196, 199, 269 S.E.2d 356, 358 (1980).

Thus, whether the term “firearm” when used in a statute without being defined is to be given its traditional meaning or a more expansive meaning depends upon the purpose and policy underlying the particular statute. When the statute is designed not only to deter physical harm, but also to deter a broader range of conduct that produces fear of physical harm, a more expansive definition of “firearm” is required in order to effectuate that purpose. See Holloman, 221 Va. at 198, 269 S.E.2d at 357 (“firearm” includes BB guns where statute prohibits the use of a firearm in the commission of a felony); see also Code § 18.2-282 (“firearm” expressly includes BB guns in statute proscribing the brandishing of a firearm or other weapon similar in appearance); see also Rogers v. Commonwealth, 14 Va. App. 774, 777-78, 418 S.E.2d 727, 729 (1992) (possession of a “sawed-off shotgun” includes inoperable shotgun because the purpose of the statute includes preventing the fear of harm engendered by display of such a weapon). On the other hand, when a statute is designed only to proscribe the act of possessing a firearm or the conduct of a felon in order to reduce a real threat of harm to the public, a narrower, more traditional definition of “firearm” is required. See Timmons v. Commonwealth, 15 Va. App. 196, 200-01, 421 S.E.2d 894, 897 (1992) (“firearm” under statute penalizing the possession of a firearm while in possession of cocaine does not include “ ‘any object’ that [appears to have] capability of firing a projectile, even if it lacks that capability”).

Code § 18.2-308.2 prohibits a felon from possessing a device that has the actual capacity to do serious harm because of its ability to expel a projectile by the power of an explosion, and it is not concerned with the use or display of a device that may have the appearance of a firearm. Therefore, we hold that the term “firearm” as used in Code § 18.2-308.2 is used in its traditional sense. The statute does not seek to protect the public from fear of harm caused by the display of weapons; rather, it is concerned with preventing a person, who is known to have committed a serious crime in the past, from becoming dangerously armed, regardless of whether that person uses, displays, or conceals the firearm. “It shall be unlawful for any person who has been convicted of a felony . . . to . . . possess or transport any firearm or to. . . carry about his person, [even if] hid[den] from common observation, any weapon described in § 18.2-308 A.” Code § 18.2-308.2(A). Accordingly, Code § 18.2-308.2 does not include a BB handgun, which is a device that propels a projectile by pneumatic pressure. Therefore, the evidence does not support Jones’ conviction for possession of a firearm after having been convicted of a felony.

Reversed and dismissed.

Benton, X, concurred.

1 See Code §§ 18.2-282(c), 18.2-284, 18.2-287.4, 18.2-308.2:2(G) and 18.2-433.1.