Armstrong v. Commonwealth

Present: All the Justices

ERIC WAYNE ARMSTRONG

OPINION BY

v. Record No. 011948 JUSTICE LAWRENCE L. KOONTZ, JR.

April 19, 2002

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals of

Virginia correctly determined that in a prosecution for

violation of Code § 18.2-308.2, which provides that it is

unlawful for a person previously convicted of a felony “to

knowingly and intentionally possess . . . any firearm,” the

Commonwealth is not required to prove as an element of the

offense that the object possessed by the defendant was an

“operable” firearm.

BACKGROUND

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party in the trial, granting to it all reasonable

inferences fairly deducible therefrom. Dowden v. Commonwealth,

260 Va. 459, 461, 536 S.E.2d 437, 438 (2000).

On February 12, 1998, the Sheriff of Highland County,

assisted by several other law enforcement officers, executed a

search warrant at the home of Eric Wayne Armstrong. Following

the seizure of suspected illegal drugs and drug paraphernalia,

Armstrong was placed under arrest. During the search, the

Sheriff and several of the other officers each observed a semi-

automatic .22 caliber rifle inside a gun cabinet. The rifle was

not examined in any detail at that time because the gun cabinet

was locked and Armstrong did not have the key to it.

Armstrong, who had a prior felony conviction, was later

charged with being a felon in possession of a firearm in

violation of Code § 18.2-308.2. At a subsequent preliminary

hearing, Armstrong’s counsel delivered the rifle to the Sheriff.

However, the Sheriff did not cause the rifle to be inspected or

test-fired while it was in his possession.

At trial, the rifle was introduced into evidence. Melvin

Eugene Armstrong, Armstrong’s cousin, testified that the rifle

belonged to him, but that he had unintentionally left the rifle

at Armstrong’s home during a prior hunting season. He testified

that he had purchased the rifle in October 1997 and produced a

receipt with a serial number matching the serial number on the

rifle. He further testified that the rifle “wouldn’t fire

. . . . You could pull the trigger but the gun won’t go off

. . . . [T]he firing pin ain’t hitting the casing so I assume

it’s got something to do with the spring in there or the firing

pin one.” He stated that while he was hunting “it just stopped

shooting.”

2

Armstrong did not dispute his prior felony conviction or

his possession of the rifle. Rather, his defense was based

solely on his assertion that the rifle was not a “firearm”

within the meaning of Code § 18.2-308.2 because it was

inoperable. The trial court rejected Armstrong’s assertion and

found him guilty of a violation of this statute. The trial

court sentenced Armstrong to two years’ imprisonment, suspending

all but seven months of that sentence. 1

Armstrong noted an appeal to the Court of Appeals,

asserting that the trial court had erred in finding that

possession of an inoperable firearm constituted a violation of

Code § 18.2-308.2. In an unpublished opinion, a panel of the

Court of Appeals, with one judge dissenting, affirmed

Armstrong’s conviction. Armstrong v. Commonwealth, No. 1388-9-3

(November 21, 2000) (hereinafter Armstrong I). Quoting Williams

v. Commonwealth, 33 Va. App. 796, 807, 537 S.E.2d 21, 26 (2000),

decided the same day as Armstrong I, the panel majority held

that Code § 18.2-308.2 “ ‘prohibits felons from possessing

actual firearms that are presently operable or that can readily

or easily be made operable or capable of being fired with

1

Armstrong was also convicted of misdemeanor possession of

marijuana and received a fine of $150 for that offense. Due to

an apparent clerical error, the sentencing order imposes this

fine in addition to the prison time for the firearm offense and

fails to impose a sentence for the marijuana charge.

3

minimal effort and expertise.’ ” Armstrong I, slip op. at 3

(emphasis added). Relying on this latter requirement of proof,

the panel majority held that “while currently inoperable, the

only defect in [Armstrong’s rifle] was that the ‘firing pin’

would not hit the ‘casing,’ a condition that ‘could be readily

or easily restored to [one] of operability.’ ” Id. at 4. The

dissenting judge, while concurring that the issue was controlled

by Williams, was of opinion that the Commonwealth’s evidence had

failed to show that the rifle could be made operable “‘on a

moment’s notice.’ ” Id. at 6 (Frank, J., dissenting) (quoting

Timmons v. Commonwealth, 15 Va. App. 196, 200-01, 421 S.E.2d

894, 897 (1992)).

Armstrong filed a petition for rehearing en banc, which was

granted. Following argument before the full Court of Appeals, a

majority, with one judge dissenting, affirmed Armstrong’s

conviction. Armstrong v. Commonwealth, 36 Va. App. 312, 549

S.E.2d 641 (2001) (en banc) (hereinafter Armstrong II).

The en banc majority, however, rejected the view adopted by

the majority in the panel decision and reached its decision on

grounds not asserted by either Armstrong or the Commonwealth in

the appeal. Rather, the majority opined that the prior panels

in both Williams and Gregory v. Commonwealth, 28 Va. App. 393,

504 S.E.2d 886 (1998), a decision relied upon by the panel in

Williams, had misconstrued the holding of Jones v. Commonwealth,

4

16 Va. App. 354, 429 S.E.2d 615, aff’d on reh’g en banc, 17 Va.

App. 233, 436 S.E.2d 192 (1993), a case which had previously

construed the term “firearm” as used in Code § 18.2-308.2.

Gregory affirmed the conviction of a felon in possession of an

unloaded rifle; Williams reversed the conviction of a felon in

possession of an inoperable, rusty pistol.

The majority began its analysis by noting that Code § 18.2-

308.2 does not define the term “firearm” and that in Jones the

Court had applied a “traditional” definition of firearm in

concluding that this statute did not prohibit the possession of

a BB handgun. 2 The majority then opined that in Gregory the

Court had “diverted from the holding in Jones” by requiring the

Commonwealth, pursuant to this statute, to prove that the weapon

is designed or intended to expel projectiles by the discharge or

explosion of gunpowder and that it is capable of doing so.

Continuing, the majority noted that the Court in Williams had

“reiterated” these elements of proof by requiring the

Commonwealth to prove that the accused possessed an object

manufactured for the purpose of expelling a projectile by an

2

The traditional definition of firearm applied by the Court

in Jones was any weapon from which a shot is discharged by

gunpowder. 16 Va. App. at 356, 429 S.E.2d at 616 (citing

Webster’s Third International Dictionary 854 (1981)). The Court

in Jones concluded that a BB handgun propels a projectile by

pneumatic pressure rather than by gunpowder.

5

explosion and that the object is presently operational or can

readily or easily be made operational or capable of being fired

with minimal effort and expertise. Armstrong II, 36 Va. App. at

315-16, 549 S.E.2d at 643.

The majority reasoned that the “presently operational,” or

“ready capability,” element of proof was contrary to the

language of Code § 18.2-308.2 and had caused confusion. The

majority further reasoned that the focus of the analysis in

Jones had been on the distinction between those instances where

a broad definition of the term is applied to statutes that

criminalize the use of a firearm, see, e.g., Code § 18.2-53.1

(use of a firearm in the commission of a felony), and those in

which the more narrow, traditional definition suffices to

promote the purpose of a statute, such as Code § 18.2-308.2,

that criminalizes the simple possession of a firearm. The

majority noted that in the former instance, the purpose of the

statute is to deter the perpetration of crimes that put the

victim in fear of harm as the result of the perception that a

firearm is being used, while the act of firearm possession

involves no perception element by a victim. Armstrong II, 36

Va. App. at 317 and n.4, 549 S.E.2d at 643 and n.4.

The majority concluded that Code § 18.2-308.2 expressed a

“legislative intent of keeping firearms out of the hands of

convicted felons,” id. at 318, 549 S.E.2d at 644, and, further,

6

that “[t]he General Assembly included no language in the statute

to circumscribe the absolute prohibition of a convicted felon’s

possession of a firearm. It matters not whether the gun’s

current condition is ‘operable’ or ‘inoperable.’” Id. at 320,

549 S.E.2d at 645. “When enacting Code § 18.2-308.2, the

General Assembly’s intent was clear: A felon cannot possess any

firearm.” Id. at 321, 549 S.E.2d at 645.

Thus, the majority affirmed Armstrong’s conviction, holding

that “[i]n a prosecution under Code § 18.2-308.2, once the

Commonwealth proves the accused is a convicted felon who

possessed an object made to ‘expel a projectile by the

combustion of gunpowder or other explosive,’ then it has proven

all the necessary elements of the crime based on the plain

language of the statute.” Id. at 320-21, 549 S.E.2d at 645. In

so holding, the majority, pursuant to Code § 17.1-402(D), stated

that it was expressly overruling Gregory and Williams, and, to

the extent that Jones could be read to establish a requirement

of proof that the firearm was operable or could readily be made

so, Jones also was overruled. Id. at 321, 549 S.E.2d at 645-46.

The dissenting judge took the view that in Jones the Court

had held that proof that the “device has the actual capacity to

do harm because of its ability to expel a projectile by the

power of an explosion” was an element of the Commonwealth’s

burden to establish that the defendant had possessed a “firearm”

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in violation of Code § 18.2-308.2. Id. at 322-23, 549 S.E.2d at

646 (Benton, J., dissenting) (quoting Jones, 16 Va. App. at 357,

429 S.E.2d at 617). Noting that the General Assembly had

revised Code § 18.2-308.2 subsequent to Jones “without any

indication that it has disagreed with” this statement in Jones,

Armstrong II, 36 Va. App. at 323, 549 S.E.2d at 646, the dissent

opined that the majority’s “only compelling feature is that it

has garnered a sufficient number of votes to overrule our prior

decisions.” Id. at 325, 549 S.E.2d at 648. Accordingly, citing

Bouie v. City of Columbia, 378 U.S. 347, 353 (1964), the dissent

further opined that the majority had violated Armstrong’s due

process rights by “a radical lowering of the threshold for

[obtaining a] conviction” under Code § 18.2-308.2.

Armstrong II, 36 Va. App. at 325, 549 S.E.2d at 647.

By order dated November 14, 2001, we awarded Armstrong this

appeal.

DISCUSSION

This Court has not previously construed the term “firearm”

as used in Code § 18.2-308.2. 3 As he did in the Court of

3

Gregory, one of the cases overturned by the Court of

Appeals in Armstrong II, was the subject of a petition for

appeal in this Court that was refused in an unpublished order.

See Gregory v. Commonwealth, Record No. 982169 (December 17,

1998). As we have recently noted, while “the refusal of a

petition for appeal is based upon the merits of the case . . .

unless the grounds upon which the refusal is based is

8

Appeals, Armstrong concedes that the .22 caliber rifle found in

his home was originally designed and manufactured to expel a

bullet by the explosion of gunpowder and that the evidence was

sufficient to prove that the rifle was in his possession at the

time of his arrest. Because the rifle was not presently

operable, Armstrong urges this Court to hold that the Court of

Appeals, in overturning the established precedent of Gregory and

Williams, violated his due process right to be adequately

informed of the nature of the offense with which he had been

charged. In the alternative, Armstrong further urges that we

reverse the judgment of the Court of Appeals overruling Gregory

and Williams, and, applying the rationale of those cases, that

we adopt the view of the dissent in Armstrong I that the

Commonwealth failed to carry its burden to produce sufficient

evidence to show that the rifle in his possession was an

operable firearm or could be readily and easily made so.

Due Process Considerations

Armstrong relies on Bouie, the United States Supreme Court

opinion cited by the dissent in Armstrong II, for the

discernable from the four corners of the Court’s order, the

denial carries no precedential value.” Sheets v. Castle, 263

Va. 407, 412, 559 S.E.2d 616, 619 (2002). Jones was decided

adverse to the Commonwealth and predated the enactment of the

statute permitting the Commonwealth to appeal adverse decisions

of the Court of Appeals. Williams, also decided adverse to the

Commonwealth, was not appealed by the Commonwealth.

9

proposition that the Court of Appeals’ rejection of Williams and

Gregory was “an unforeseeable judicial enlargement of a criminal

statute, applied retroactively, [which] operates precisely like

an ex post facto law” in violation of the defendant’s due

process rights. Bouie, 378 U.S. at 353. Thus, he contends that

even if the Court of Appeals erred in those prior cases in

requiring the Commonwealth to prove, under Code § 18.2-308.2,

that the firearm was operable or could be readily made so, at

the time of his trial that was nonetheless the state of the law

which should be applied in his case.

Armstrong’s reliance on Bouie is misplaced. Bouie applies

to changes in the interpretation of a criminal statute that are

“indefensible by reference to the law that had been expressed

prior to the conduct in issue.” Id. at 354 (emphasis added).

As the majority in Armstrong II noted, and as the record clearly

establishes, the conduct which resulted in Armstrong being

charged with a violation of Code § 18.2-308.2 antedates the

Court of Appeals’ decisions in Gregory and Williams. See United

States v. Lanier, 520 U.S. 259, 266 (1997); accord Rogers v.

Tennessee, 532 U.S. 451, 457-62 (2001).

In addition, while published panel decisions of the Court

of Appeals are precedent binding on other panels of that Court,

the precedent remains subject to review by the Court of Appeals

sitting en banc and by this Court on appeal. Commonwealth v.

10

Burns, 240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990). By

contrast, the concern expressed in Bouie related to “a State

Supreme Court” using judicial construction to subvert due

process, leaving the defendant with no avenue of redress from

the state. See Bouie, 378 U.S. at 353-54. Such is not the case

here. Accordingly, there can be no implication that in

overturning the panel decisions in Gregory and Williams, the en

banc Court of Appeals violated Armstrong’s due process rights.

Meaning of “Firearm” in Code § 18.2-308.2

“[P]enal statutes must be ‘strictly construed against the

State’ and . . . ‘cannot be extended by implication or

construction, or be made to embrace cases which are not within

their letter and spirit.’ ” Commonwealth, Dep’t of Motor

Vehicles v. Athey, 261 Va. 385, 388, 542 S.E.2d 764, 766 (2001)

(quoting Berry v. City of Chesapeake, 209 Va. 525, 526, 165

S.E.2d 291, 292 (1969)). However, although we construe statutes

strictly in criminal cases, we will not apply “an unreasonably

restrictive interpretation of the statute” that would subvert

the legislative intent expressed therein. Ansell v.

Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979).

Consistent with these principles, we have recognized that

when the legislature seeks to punish the use of a firearm as a

criminal act, the term “firearm” must not be unreasonably

restricted by judicial construction such that the legislative

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intent is thereby frustrated. See, e.g., Holloman v.

Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980) (per

curiam) (holding that Code § 18.2-53.1, criminalizing use or

display of a firearm in the commission of a felony, included use

of “an instrument that gives the appearance” of being a

firearm). Similarly, when the nature of some other criminal act

is defined by whether the defendant achieves his purpose through

the use of a firearm, a narrow construction of the term is not

warranted. See, e.g., Johnson v. Commonwealth, 209 Va. 291,

296, 163 S.E.2d 570, 574 (1968) (charge that attempted robbery

involved “ ‘presenting of firearms or other violence’ ” did not

warrant jury instruction that the instrument displayed was an

operable firearm). The rationale underlying this interpretation

of statutes prohibiting the use of a firearm in various contexts

is the same. As we succinctly stated in Holloman with respect

to the construction of the term “firearm” in Code § 18.2-53.1:

The purpose . . . is [not only] to deter violent

criminal conduct . . . but also . . . to discourage

criminal conduct that produces fear of physical harm.

Such fear of harm results just as readily from

employment of an instrument that gives the appearance

of having a firing capability as from use of a weapon

that actually has the capacity to shoot a projectile.

The victim of a crime can be intimidated as much by a

revolver that does not fire bullets as by one that

does.

Holloman, 221 Va. at 198, 269 S.E.2d at 358; see also Kelsoe v.

Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983) (per

12

curiam) (gravamen of the offense of brandishing a firearm is the

inducement of fear in another).

By contrast, the conduct proscribed by Code § 18.2-308.2,

being a felon in possession of a firearm, focuses on the General

Assembly’s determination that certain individuals – felons – are

unfit to possess firearms, even for lawful purposes. 4

Undoubtedly that determination is consistent with the view held

by society in general. Thus, we are of opinion that the

legislative intent underlying Code § 18.2-308.2 is not directed

toward proscribing “criminal conduct that produces fear of

physical harm” to an individual victim and, accordingly, the

offense has no element of perception by a victim that would

warrant applying the same broad construction to the term

“firearm” in that statute as is applicable to the same term in

Code § 18.2-53.1. Because the legislative intent of Code

§ 18.2-308.2 is to prohibit convicted felons from possessing

“any firearm” (emphasis added), we must consider what meaning of

the term “firearm” will give effect to that intent without

4

Similarly, the General Assembly has determined that other

persons are unfit to possess firearms and other dangerous

weapons. Cf. Code §§ 18.2-308.1:1, 18.2-308.1:2, 18.2-308.1:3

(prohibiting possession of firearms by certain persons

adjudicated as mentally ill or incompetent), 18.2-308.2:01

(prohibiting possession of certain firearms by illegal aliens),

18.2-308.4 (prohibiting possession of firearms by persons in

possession of certain controlled substances).

13

improperly expanding or unreasonably restricting the meaning of

the language used by the General Assembly.

As noted by the Court of Appeals, Code § 18.2-308.2

provides no express definition of the term “firearm.”

Similarly, other statutes within Title 18.2 use the term

“firearm” without providing an express definition of that term.

See, e.g., Code 18.2-308.5. However, other related statutes do

provide definitions of that term. Accordingly, we may look to

the related statutes, reading them in pari materia with the

statute under consideration, in order to give consistent meaning

to the language used by the General Assembly. Lucy v. County of

Albemarle, 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999).

Code §§ 18.2-308.2:2 and 18.2–308.2:3 define a firearm as

“any handgun, shotgun, or rifle which expels a projectile by

action of an explosion.” Code § 18.2-308(M) defines a “handgun”

as an instrument “originally designed, made and intended to fire

a projectile by means of an explosion of a combustible material

from one or more barrels.” Code § 18.2-433.1 defines a

“Firearm” as “any weapon which is designed to or may readily be

converted to expel any projectile by the action of an explosive;

or the frame or receiver of any such weapon.” Similar

definitions of a firearm or a specific type of firearm may be

found, for example, in Code §§ 18.2-287.4, 18.2-308.2:01, 18.2-

308.7, and 22.1-277.01(D).

14

None of these statutory definitions reflect a legislative

intent in a statute that prohibits the possession of a firearm

to limit the term “firearm” to one that is presently operable.

We are of opinion that the General Assembly intended to include

any instrument designed, made, and intended to fire or expel a

projectile by means of an explosion within the definition of a

firearm, absent express language to the contrary. And we are

further of opinion that to read into Code § 18.2-308.2 by

implication a requirement that the meaning of the term “firearm”

includes an element of present capacity or operability would

amount to an unreasonably restrictive interpretation of that

term and subvert the intent of the General Assembly.

We hold that in order to sustain a conviction for

possessing a firearm in violation of Code § 18.2-308.2, the

evidence need show only that a person subject to the provisions

of that statute possessed an instrument which was designed,

made, and intended to expel a projectile by means of an

explosion. 5 It is not necessary that the Commonwealth prove the

5

We observe that our holding today is consistent with the

decisions of other jurisdictions that have considered this or a

similar issue. See, e.g., United States v. Adams, 137 F.3d

1298, 1300 (11th Cir. 1998) (reaching same conclusion with

respect to federal felon in possession of a firearm statute and

noting that all other federal circuits addressing the issue were

in agreement); People v. Brown, ___ N.W.2d ___, ___ (Mich. Ct.

App. 2002)(“a handgun need not be currently operable in order to

qualify as a ‘firearm’ ” under felon in possession statute);

15

instrument was “operable,” “capable” of being fired, or had the

“actual capacity to do serious harm.” Accordingly, we affirm

the judgment of the Court of Appeals in Armstrong II to overrule

Gregory and Williams, and in limiting the reading of Jones to

any extent that it could be read as being inconsistent with the

opinion expressed in Armstrong II.

Sufficiency of the Evidence

During the oral argument of this appeal, the Commonwealth

conceded that an instrument originally designed, made, and

intended to expel a projectile by force of an explosion could

fall into a state of such significant disrepair or be altered in

such a way that it would cease to be a “firearm” for purposes of

applying Code § 18.2-308.2. 6 Such a case, however, is not

presented by this appeal. The evidence that Armstrong’s rifle

was inoperable indicates that it could have been repaired by the

Thomas v. State, 36 S.W.3d 709, 711 (Tex. Ct. App. 2001) (felon

in possession statute requires only proof of a device designed,

made, or adapted to perform as a firearm, and not that it is

presently capable of firing); State v. Rogers, 494 So.2d 1251,

1254 (La. Ct. App. 1986) (firearm need not be operable at the

time felon possessed it); State v. Baldwin, 237 S.E.2d 881, 882

(N.C. Ct. App. 1977) (state need not show weapon was operable).

6

Common sense and experience leave no room for doubt that

an instrument originally designed, made, and intended to expel a

projectile by force of an explosion can lose this characteristic

in many ways such that it would no longer be fairly considered a

firearm. However, we express no opinion here on the degree of

disrepair or alteration that would cause an instrument to no

longer qualify as a firearm under Code § 18.2-308.2.

16

adjustment of the spring between the trigger and the hammer or

by adjustment of the firing pin. As such, the rifle was clearly

not in so serious a state of disrepair that it had lost its

characteristic as an instrument designed, made, and intended to

expel a projectile by means of an explosion. It is irrelevant

that Armstrong may have lacked the requisite skill to effect the

needed repair or that he might not have been able to render the

rifle immediately operable. 7 The evidence was clearly sufficient

to establish that the rifle was designed, made, and intended to

expel a projectile by means of an explosion, and that is all the

Commonwealth need prove to establish that it was a firearm

within the meaning of the statute. Accordingly, we hold that

the Court of Appeals did not err in affirming Armstrong’s

conviction for having possessed a firearm in violation of Code

§ 18.2-308.2.

7

We recognize that in Rogers v. Commonwealth, 14 Va. App.

774, 777-78, 418 S.E.2d 727, 729 (1992), the Court of Appeals

held that a weapon missing a firing pin was a firearm under Code

§ 18.2-308.2, since it could be made “completely operable . . .

after a moment’s delay.” Similarly, in Timmons, 15 Va. App. at

200-01, 421 S.E.2d at 897, the Court of Appeals stated that an

unloaded weapon can be made ready to function “on a moment’s

notice” and, thus, was a firearm within the meaning of Code

§ 18.2-308.4. In neither instance, however, was there any doubt

that the instrument in question was not one designed, made, and

intended to expel a projectile by means of an explosion and,

thus, the references to “a moment’s notice” and “a moment’s

delay” may be considered dicta.

17

CONCLUSION

For these reasons, the judgment of the Court of Appeals

will be affirmed. However, we will remand the case to the Court

of Appeals with instructions to remand the case to the trial

court for the sole purpose of correcting, nunc pro tunc, the

clerical error in the trial court’s sentencing order. See note

1, supra.

Affirmed and remanded.

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