Melvin Carter v Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements Argued at Chesapeake, Virginia
MELVIN CARTER
v. Record No. 0891-01-1
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE RICHARD S. BRAY APRIL 16, 2002
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge
Edward W. Webb for appellant.
Leah A. Darron, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief) , for appellee.
Melvin Carter (defendant) was convicted in bench trials for possession of a firearm while in possession of a controlled substance and possession of a firearm by a convicted felon, violations of Code $$ 18.2-308.4, and -308.2, respectively. On appeal, he challenges the sufficiency of the evidence to support the convictions and, further, the court's imposition of the mandatory sentence prescribed for certain violations of Code § 18.2-308.2. Finding no error, we affirm the trial court.
I.
Guided by familiar principles of appellate review, we examine "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

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S.E.2d 415, 418 (1987). 	The credibility of witnesses, the weight
accorded testimony, and the inferences to be drawn from proven
facts are matters solely within the province of the fact finder.
Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). 	The judgment of the trial court, sitting without a jury,
is entitled to the same weight as a jury verdict and will be
disturbed only if plainly wrong or without evidence to support it.
Martin, 4 Va. App. at 443, 358 S.E.2d at 418.
Viewed accordingly, the record discloses that, on March 27,
2000, Virginia Beach Police Officer Frederick E. Franks stopped a
vehicle for a traffic infraction and noticed the front seat
passenger, defendant, was not wearing a seat belt. 	Intending to
issue a summons, Franks obtained identification from defendant and
conducted a routine "record check," which revealed "outstanding
warrants" for defendant's arrest.
Franks, then joined at the scene by Officer Nicholas Russo,
advised defendant of the warrants and asked that he "step out of
the vehicle." 	As defendant exited the car, he removed his jacket
and "set it in the seat." 	Russo "picked up the jacket" and,
noticing it "felt heavy," "went into the pockets," and discovered
an unloaded "handgun." 	A search of defendant's person by Franks
revealed cocaine in a trouser pocket. 	Defendant, a convicted

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felon, was subsequently indicted for possession of the controlled
substance,1 together with the instant firearm offenses.
On December 4, 2000, trial commenced only on the
indictments charging possession of cocaine and of a firearm
while in possession of the controlled substance. 	Franks
identified the "unique weapon" found in defendant's jacket as a
"Cobray .45-.22 over-under," with the "capability . . . [to
fire] either the .22 round or the .45 round." 	Testing the
pistol prior to trial, Franks placed "maskin [sic] tape . . .
between the firing pin and the barrel of the weapon, pulled the
trigger" and noted "quite a distinct impression on the tape,"
"where the firing pin would hit the primer . . . of the .45
round." 	Similarly, when he placed "a spent shell for a .22 long
rifle . . . into the barrel for the .22 . . . and pulled the
trigger[,] . . . it did also leave a mark where the firing pin
struck the rear of the casing . . . consistent with the firing
pin striking the .22 long rifle." 	Based upon his "experience
and . . . training," Franks opined, without objection, that the
indentation evinced a strike by the firing pin on the .22 shell
sufficient "to discharge that round."2
1 Defendant does not challenge the conviction and sentence
for possession of the cocaine.
2 On cross-examination, Franks testified he did not actually
"test fire[] the weapon." 	He also acknowledged that a
"particular [.45 caliber shell] casing slid down through the
barrel," although the significance of such finding is unclear in
the record. 	(Emphasis added.)

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At both the conclusion of the Commonwealth's case and of all
the evidence, defendant moved the court to strike, contending the
Commonwealth had not "proven [the weapon] to be operable," an
element necessary to establish a "firearm" contemplated by Code
§ 18.2-308.4. 	The court, however, overruled the motions,
convicted defendant of possession of a firearm while in possession
of a controlled substance, and deferred sentencing pending the
preparation and consideration of a presentence report.
On March 20, 2001, defendant appeared before the court for
sentencing and for trial on the unresolved indictment alleging
possession of a firearm by a convicted felon. 	For purposes of
trial on the felon/firearm offense, the Commonwealth and
defendant agreed to "[s]tipulate to the evidence and the
exhibits" introduced in the earlier prosecution, subject to
defendant's continuing challenge to the sufficiency of the
evidence to establish "the operability of the firearm." 	In
proof of defendant's prior felony conviction, the Commonwealth
offered into evidence a copy of an order entered in the Virginia
Beach Juvenile and Domestic Relations District Court on September
7, 1995, which memorialized a finding of "guilty" of "Assault by
Mob," a violation of Code § 18.2-41, a "violent felony" pursuant
to Code § 17.1-805. 	Attendant records, also in evidence,
established defendant was fifteen years old at the time of such
offense.

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Despite defendant's challenge to the sufficiency of the
evidence to prove the firearm element of the offenses, the trial
court also found defendant guilty of possession of a firearm by a
convicted felon and proceeded to sentencing on both the controlled
substance/firearm and felon/firearm convictions. 	Defendant then
argued that the mandatory sentencing provision of Code
§ 18.2-308.2, the felon/firearm offense, was applicable only to an
accused "previously convicted of a violent felony," not "a [prior]
juvenile adjudication." 	(Emphasis added.) 	The trial judge
disagreed and sentenced defendant to the mandatory term of five
years imprisonment for the offense.
II.
Defendant first contends the evidence was insufficient to
prove he was in possession of an operable firearm within the
intendment of Code §§ 18.2-308.2 and -308.4.
Both Code §§ 18.2-308.2 and –308.4 criminalize the
possession of a "firearm" by certain persons. 	Code § 18.2-308.2
proscribes such conduct by "(i) any person who has been convicted
of a felony or (ii) any person under the age of twenty-nine who
was found guilty as a juvenile fourteen years of age or older at
the time of the offense of a delinquent act which would be a
felony if committed by an adult." 	Code § 18.2-308.4 prohibits the
possession of "any firearm" by "[a]ny person unlawfully in
possession of a controlled substance . . . ."

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In Jones v. Commonwealth, 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),
and its progeny, we construed Code § 18.2-308.2 to require proof
that the offending weapon was operational or the functional
equivalent. 	See, e.g., Williams v. Commonwealth, 33 Va. App. 796,
537 S.E.2d 21 (2000); Gregory v. Commonwealth, 28 Va. App. 393,
504 S.E.2d 886 (1998). 	In Timmons v. Commonwealth, 15 Va. App.
196, 421 S.E.2d 894 (1992), we applied a like principle to
prosecutions under Code § 18.2-308.4. 	Id. at 199-201, 421 S.E.2d
at 896-97.
Later, however, in Armstrong v. Commonwealth, 36 Va. App.
312, 549 S.E.2d 641 (2001) (en banc), we revisited Jones,
Timmons and a succession of decisions that applied the related
operability theory, concluding, "[i]t matters not whether the
gun's current condition is 'operable' or 'inoperable' or whether
a can of WD-40 or the local gunsmith could render the firearm
fully functional." 	Id. at 320, 549 S.E.2d at 645. 	Thus, we
said:
In 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. 	Subsequently, the Supreme
Court of Virginia awarded Armstrong an appeal from the judgment

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of this Court, thereby rendering uncertain the authority of our
decision.
Nevertheless, with Armstrong aside, and assuming
controlling jurisprudence required the Commonwealth to prove the
weapon in issue was operational, the instant record established
the element. 	Tests of the gun conducted by police demonstrated
the efficacy of the trigger, firing pin and related mechanisms,
and Officer Franks testified, without objection or
contradiction, that it would "discharge [a .22] round."
Further, the trial judge, after examining the gun, found it was
a "heavy weapon . . . [with] a very heavy, solid, strong firing
mechanism[, which] makes an indentation in the .22-caliber
cartridge . . . very similar to the indentation that fired the
bullet out of that cartridge." 	We, therefore, find no merit in
defendant's sufficiency challenge.
III.
Defendant next contends the mandatory sentencing provision of
Code § 18.2-308.2 is not implicated by a prior "juvenile
adjudication." 	We disagree.
Code § 18.2-308.2 provides, in pertinent part:
It shall be unlawful for (i) any person who
has been convicted of a felony or (ii) any
person under the age of twenty-nine who was
found guilty as a juvenile fourteen years of
age or older at the time of the offense of a
delinquent act which would be a felony if
committed by an adult, whether such
conviction or adjudication occurred under
the laws of this Commonwealth, or any other

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state . . . , to knowingly and intentionally
possess . . . any firearm. . . . 	Any person
who violates this section shall be guilty of
a Class 6 felony. 	However, any person who
violates this section by knowingly and
intentionally possessing or transporting any
firearm and who was previously convicted of
a violent felony as defined in § 17.1-805
shall not be eligible for probation, and
shall be sentenced to a minimum, mandatory
term of imprisonment of five years. . . .
(Emphases added.)3
The statute is intended to "'prevent[] 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.'" 	Thomas v.
Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (2002)
(citation omitted). 	"Any person" convicted of the offense is
subject to punishment as a Class 6 felony. 	However, to assure
additional public protection from "dangerously armed" felons
with a demonstrated propensity for violence, the legislature
mandated incarceration for "any person . . . previously
convicted" of a "violent [predicate] felony." 	Code
§ 18.2-308.2(A) (emphases added).
Defendant urges we construe the statutory reference to "any
person . . . previously convicted of a violent felony," which
appears in the mandatory sentencing provision of Code
3 Code § 17.1-805(C) provides: 	"For purposes of this
chapter, violent felony offenses shall include any violation of
. . . [Code] § 18.2-41 . . . ."

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§ 18.2-308.2(A), to exclude from such punishment offenders
"found guilty . . . of a delinquent act . . ., whether such
conviction or adjudication" resulted from a violation of
Virginia law or otherwise. 	(Emphasis added.) 	In support of his
argument, defendant notes "the terms . . . used to describe
[predicate] juvenile offenses" in defining the crime are
distinct from "convictions" referenced in mandating sentence,
thereby evincing legislative intent to limit the mandatory
punishment to persons having committed a violent felony as an
adult. 	Defendant's construction, however, is belied by the
clear language of Code § 18.2-308.2(A) and would subvert the
salutary purposes of the statute.
Well established "principles of statutory construction
require us to ascertain and give effect to the legislative
intent." 	Branch v. Commonwealth, 14 Va. App. 836, 839, 419
S.E.2d 422, 424 (1992). 	"The plain, obvious, and rational
meaning of a statute is always preferred to any curious, narrow
or strained construction; a statute should never be construed so
that it leads to absurd results." 	Id. 	Thus, "[i]t is a basic
rule of statutory construction that a word in a statute is to be
given its everyday, ordinary meaning unless the word is a [term]
of art." 	Stein v. Commonwealth, 12 Va. App. 65, 69, 402 S.E.2d
238, 241 (1991) (citations omitted). 	Because the Code of
Virginia is "one body of law," we may consult other statutes
"using the same phraseology" to assist us in divining

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legislative intent. 	Branch, 14 Va. App. at 839, 419 S.E.2d at
425. 	"Although penal laws are to be construed strictly [against
the Commonwealth], they 'ought not to be construed so strictly
as to defeat the obvious intent of the legislature.'" 	Willis v.
Commonwealth, 10 Va. App. 430, 441, 393 S.E.2d 405, 411 (1990)
(citation omitted).
Here, in fashioning a statute to protect the public from
the threat of dangerously armed felons, the legislature
expressly included within the statutory proscription all persons
previously "found guilty," while juveniles, of a "delinquent
act," deemed felonious. 	Subsequent reference in Code
§ 18.2-308.2(A) to "conviction or adjudication" simply
recognizes terms that sometimes differentiate determinations of
guilt in juvenile and adult prosecutions. 	Thus, the inclusive
language, "any person," which appears in the punishment
provisions of the statute, clearly embraces anyone found in
violation of the prohibition.4 Contrary to defendant's argument,
the statutory language promotes inclusion, not exclusion. 	A
different interpretation would exempt dangerous felons, with
demonstrated violent propensities, from a mandated punishment
intended to enhance public protection, a narrow and illogical
construction at odds with legislative intent.
4 In ordinary parlance, the adjective "any" connotes "one or
some indiscriminately of whatever kind," "every," "all."
Webster's Ninth New Collegiate Dictionary 93 (1989).

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Moreover, treatment of juvenile "adjudications" as
convictions for purposes of sentencing considerations comports
with other statutes that address the issue. 	See, e.g. Code
§ 17.1-805(B)(1) ("For purposes of [sentencing guidelines],
previous convictions shall include prior adult convictions and
juvenile convictions and adjudications of delinquency based on
an offense which would have been at the time of conviction a
felony if committed by an adult . . . ."); Code § 19.2-295.1
(stating that for purposes of sentencing, "defendant's prior
criminal convictions . . . include[] adult convictions and
juvenile convictions and adjudications of delinquency" (emphasis
added)).
Accordingly, we affirm the convictions, together with the
mandatory punishment imposed upon defendant in accordance with
Code § 18.2-308.2(A).
Affirmed.

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