Opinion
Record No. 1388-99-3
November 21, 2000
Appeal from the Circuit Court of Highland County, Duncan M. Byrd, Jr., Judge
Ronald W. Vaught for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Coleman and Frank
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Eric Wayne Armstrong (appellant) was convicted in a bench trial of possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2. He contends that the evidence was insufficient to prove that the object possessed by him was a firearm because it was not "operable." For the following reasons, we affirm.
Appellant was also convicted of possession of marijuana, in violation of Code § 18.2-250.1, which is not the subject of this appeal.
I.
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, the prevailing party below, granting to that evidence all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that during a search of appellant's residence on February 12, 1998, Sheriff Herbert Lightner of Highland County observed what appeared to be a .22 caliber rifle and a pellet/BB gun inside a gun cabinet. Appellant, who had a prior felony conviction, was charged with possession of a firearm by a convicted felon. At the preliminary hearing on the charges, the authorities seized the two weapons. No one test fired the guns.
At trial the Commonwealth did not rely upon the BB gun observed in the gun cabinet as the basis for the firearm conviction.
At trial, Melvin Eugene Armstrong, appellant's cousin, testified that the .22 rifle belonged to him. Melvin stated that he purchased the rifle at K-Mart in October 1997 and produced a receipt from the store with a serial number matching the number on the rifle. Melvin explained that the rifle "wouldn't fire." He testified: "You could pull the trigger but the gun won't go off. . . . [T]he firing pin ain't [sic] hitting the casing so I assume it's got something to do with the spring in there or the firing pin one."
At the conclusion of the evidence, appellant argued that the rifle was not a "firearm" within the meaning of Code § 18.2-308.2 because the Commonwealth failed to prove that it had the actual ability to "expel a projectile by the power of an explosion." The trial court disagreed and found appellant guilty of possession of a firearm by a convicted felon.
II.
On appeal, appellant concedes that the rifle was "designed or intended to expel a projectile by discharge or explosion of gun powder." However, he contends that the device was "inoperable" based upon the "credible, affirmative, and unrebutted" testimony by Melvin Armstrong that the gun did not work. Accordingly, appellant concludes, the evidence was insufficient to sustain his conviction.
This case is controlled by our decision decided this day inWilliams v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (2000). In Williams, we reversed the defendant's conviction for a violation of Code § 18.2-308.2 because the Commonwealth failed to prove that "the weapon could be readily or easily restored to a condition of operability." Id. at ___, ___ S.E.2d at ___. In determining whether the item possessed by the defendant was a "firearm" proscribed under Code § 18.2-308.2, we concluded that the statute "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 minimal effort and expertise. To that end, we agree with the reasoning used inTimmons [v. Commonwealth, 15 Va. App. 196, 421 S.E.2d 894 (1992),] and Rogers [v. Commonwealth, 14 Va. App. 774, 418 S.E.2d 727 (1992),] that a weapon does not cease to be a firearm merely because it has no present or immediate capacity to fire a projectile." Id. at ___, ___ S.E.2d at ___.
In the instant case, the evidence established that while currently inoperable, the only defect in the gun 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 ___, ___ S.E.2d at ___. Therefore, we affirm.
Affirmed.
While I agree with the majority's analysis of the case law, I respectfully dissent because I do not believe, under Williams v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (2000), the Commonwealth has proven the gun is operable.
Under Williams, the Commonwealth initially must prove the accused possessed a weapon manufactured to propel a projectile by means of an explosion. See Williams, ___ Va. App. at ___, ___ S.E.2d at ___. The Commonwealth did so in this case. Then, the appellant may present an "affirmative defense" that the weapon is not operable, to defeat the inference of "operability." See id. at ___, ___ S.E.2d at ___. Once an "affirmative defense" is raised, the Commonwealth must then show that the weapon "could be readily or easily restored to a condition of operability." Id. at ___, ___ S.E.2d at ___.
In this case, the uncontradicted evidence is that the rifle "wouldn't fire" because the "firing pin ain't [sic] hitting the casing." There was absolutely no evidence that the weapon "could be readily or easily restored to a condition of operability." Id. Under Timmons v. Commonwealth, 15 Va. App. 196, 200-01, 421 S.E.2d 894, 897 (1992), the weapon must be able to be restored "on a moment's notice."
Here, since there is no evidence at all, we do not know if a gunsmith is needed to restore the gun, whether such work can be done by the owner or whether the restoration can be done "on a moment's notice."
Under the Williams analysis, the Commonwealth has failed to meet its burden of proof. Therefore, I would reverse the judgment of the trial court and dismiss the indictment.