Opinion
Record No. 2083-92-4
Decided: May 31, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Quinlan H. Hancock, Judge
Affirmed.
Susan Korfanty (Clinton O. Middleton, on brief), for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General; Richard B. Smith, Assistant Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Elder and Senior Judge Duff
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Thomas E. Connor was convicted of possessing a firearm after having been convicted of a felony pursuant to Code Sec. 18.2-308.2. On appeal, he contends that the trial court committed reversible error in giving an erroneous instruction to the jury on the definition of a firearm. We agree that the trial court incorrectly instructed the jury; however, finding the error harmless, we affirm.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On February 9, 1992, Michael Baldwin visited appellant's residence and purchased a "shotgun" from him. On February 11, 1992, Leroy Cockrille visited appellant's residence and purchased four "weapons"/"guns" from him. Cockrille identified Commonwealth's Exhibits 2, 3, 4, and 5 as photographs of the weapons he purchased. Danny Tolley identified Commonwealth's Exhibit 2 as a "twenty-two Hornet with a scope, it's a rifle." Because appellant had been convicted of a felony in 1988, he was indicted for possessing a firearm after having been previously convicted of a felony in violation of Code Sec. 18.2-308.2.
At trial, after the Commonwealth presented its evidence, appellant moved to strike, alleging that: (1) someone else owned the guns; and (2) the Commonwealth failed to prove that the guns, "are, in fact, legitimate working firearms," which is the purpose of the statute, namely, to keep functional firearms out of the possession of convicted felons. The trial judge took the motion under advisement. After appellant presented his evidence, he renewed his motion to strike, limiting argument to the fact that someone else owned and was selling the guns from appellant's residence. The court continued to take the motion under advisement.
When reviewing jury instructions, defense counsel objected to Instruction No. 2. The Commonwealth contended that the statute does not require a working firearm. After reviewing Code Sections 18.2-282 and 18.2-308.2:2, the court granted and read Commonwealth's Instruction No. 2, as follows:
The Court instructs the Jury that a firearm is any object which gives the appearance of having the capability of firing a projectile. It is not necessary that the object actually have the capability of firing a projectile.
After deliberation, the jury returned a verdict of guilty.
Code Sec. 18.2-308.2, under which appellant was convicted, states that it is unlawful to possess any weapon described in Code Sec. 18.2-308(A). Code Sec. 18.2-308(A) refers to the following weapons, among others: "any pistol, revolver, or other weapon designed or intended to propel a missile of any kind." This Court recently explained:
Code Sec. 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.
Jones v. Commonwealth, 16 Va. App. 354, 357-58, 429 S.E.2d 615, 617, aff'd en banc, ___ Va. App. ___ 436 S.E.2d 192 (1993).
In Timmons v. Commonwealth, 15 Va. App. 196, 421 S.E.2d 894 (1992), we held that an instruction identical to the one being challenged here was error in a prosecution under Code Sec. 18.2-308.4, but affirmed the conviction under a harmless error analysis. We indicated that the weapon need not be operable at the time. Id. at 200, 421 S.E.2d at 897 ("[A] weapon is not excluded from the operation of the statute simply because it is missing a part at the time it is seized"); see also Rogers v. Commonwealth, 14 Va. App. 774, 777-78, 418 S.E.2d 727, 729 (1992) (shotgun missing firing pin was still a sawed off shotgun).
In Jones, we explained that possession of firearm crimes, such as Code Sec. 18.2-308.2, require a narrower, traditional definition of firearm and are intended to prevent a person convicted of a serious criminal offense "from becoming dangerously armed" rather than "to protect the public from fear of harm caused by the display of weapons." 16 Va. App. at 358, 429 S.E.2d at 617. Although the granted instruction is applicable to a prosecution under Code Sections 18.2-53.1 or 18.2-282, it is too broad to fit within the prohibition of Code Sec. 18.2-308.2. See id. at 357, 429 S.E.2d at 616. Thus, here, as in Timmons, it was error for the court to grant the misleading instruction.
We next must determine whether the error was harmless. "In Virginia, non-constitutional error is harmless '[w]hen it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.' " Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).
Because sufficient evidence established that the guns possessed and sold by appellant were firearms having "the actual capacity to do serious harm because of [their] ability to expel a projectile by the power of an explosion," as described in Jones, 16 Va. App. at 357, 429 S.E.2d at 617, we find that granting the erroneous instruction was harmless beyond a reasonable doubt. See Timmons, 15 Va. App. at 199-200, 421 S.E.2d at 896 (applying harmless error analysis where "[t]here was no dispute that the 'object' Timmons was charged with possessing was a .32 caliber semi-automatic pistol").
Here, as in Timmons, the evidence established, without dispute, that the objects possessed and sold by appellant were, in fact, weapons or firearms encompassed by the statute. The witnesses testified that they sought to and did buy "guns," including a "shotgun" and a "twenty-two hornet" rifle. Photographs of the shotgun and twenty-two were identified by the witnesses. Webster defines "shotgun" as "an often double-barreled smoothbore shoulder weapon for firing shot at short ranges." Webster's Third New International Dictionary 2104 (1981). A "twenty-two" is defined as "a 22-caliber rifle or pistol," id. at 2472, and a "rifle" is defined as "a firearm having a rifled bore and intended to be fired from the shoulder." Id. at 1954.
In conclusion, we find that the trial court erred in granting the instruction; however, because the error was harmless, we affirm appellant's convictions.
Affirmed.