Thomas Wayne Clay v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Clements and Agee
THOMAS WAYNE CLAY
OPINION BY
v. 	Record No. 2186-00-3 	JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 25, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
(Jesse W. Meadows, III, on brief), for
appellant. 	Appellant submitting on brief.
(Mark L. Earley, Attorney General; Eugene
Murphy, Assistant Attorney General, on
brief), for appellee. 	Appellee submitting on
brief.
Thomas Wayne Clay was convicted in a bench trial of three
counts of possession of a firearm with altered serial numbers,
in violation of Code § 18.2-96.1.1 The sole issue on appeal is
whether the trial court properly convicted Clay of three
separate counts of possession of a firearm with an altered
serial number. 	Finding no error, we affirm the judgment of the
trial court.
BACKGROUND
Under well-settled principles of appellate review, we
examine the evidence and all reasonable inferences fairly
1 Clay was also convicted on pleas of guilty to statutory
burglary, in violation of Code § 18.2-91, and grand larceny, in
violation of Code § 18.2-95.

deducible therefrom in the light most favorable to the
Commonwealth, the prevailing party below. 	Burlile v.
Commonwealth, 32 Va. App. 796, 798, 531 S.E.2d 26, 27 (2000).
The Commonwealth's evidence was presented by stipulation.
No evidence was presented by Clay. 	The evidence proved that on
February 25, 2000, Clay burglarized his neighbor's home and
stole six firearms and a box of cash. 	The victim, suspecting
Clay of the burglary and theft, told Clay that the guns were
sentimental to him and that he would like to get them back.
Clay told the victim that, although he had not stolen the guns,
he thought he knew where he could find them.
Prior to March 3, 2000, Clay sold the victim one of the
stolen guns. 	The serial number on that gun had not been
altered. 	On March 3, 2000, Clay sold the victim two more of the
stolen guns, including one whose serial number had been altered
after the theft, a Ruger Mark I .22 caliber pistol. 	On March 8,
2000, Clay sold two more of the stolen weapons to the victim,
including a BSA .270 caliber rifle whose serial number had been
filed off sometime following the theft. 	On March 9, 2000, the
police executed a search warrant on Clay's home and recovered a
Smith and Wesson .357 magnum handgun whose serial number had
also been removed after the theft.
Clay was charged with three counts of altering the
manufacturer's serial number or possessing property so altered,
in violation of Code § 18.2-96.1. 	The offense dates charged in
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the indictments were March 3, March 8, and March 9, 2000,
respectively. 	The trial court convicted Clay of three counts of
possessing a firearm with an altered serial number, in violation
of Code § 18.2-96.1.
ANALYSIS
Code § 18.2-96.1 provides, in pertinent part:
C. 	It shall be unlawful for any person to
remove, alter, deface, destroy, conceal, or
otherwise obscure the manufacturer's serial
number . . . from . . . personal property or
any part thereof, without the consent of the
owner, with intent to render it . . .
unidentifiable.
D. 	It shall be unlawful for any person to
possess such personal property or any part
thereof, without the consent of the owner,
knowing that the manufacturer's serial
number . . . has been removed, altered,
defaced, destroyed, concealed, or otherwise
obscured with the intent to violate the
provisions of this section.
Clay contends that, because the three guns whose serial
numbers were altered were stolen at the same time during a
single incident, with no evidence that their serial numbers were
altered on different occasions, he should have been charged with
and convicted of only one count of possessing firearms with
altered serial numbers. 	The legislature, Clay argues, did not
intend, under the circumstances of this case, that he be
punished for three separate offenses. 	He analogizes his
situation to that of a convicted felon who, found in possession
of several firearms at the same time and place, is charged with
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and convicted of only a single count of possession of a firearm
by a convicted felon. 	See, e.g., Acey v. Commonwealth, 29 Va.
App. 240, 249-51, 511 S.E.2d 429, 433-34 (1999).
The Commonwealth contends that, because Clay's possession
of firearms with altered serial numbers occurred on three
separate occasions and each occasion involved a separate weapon
whose serial number had been altered after the theft, the trial
court properly convicted Clay of three separate offenses. 	We
agree with the Commonwealth.
Although not identified as such in his argument, we
conclude that Clay is asking us to apply the "single possession
doctrine" to the facts before us. 	We recognized the "single
possession doctrine" in Acey, wherein we held that Acey, a
convicted felon who possessed three firearms at the same time
and place, committed a single offense under Code § 18.2-308.2,
rather than three separate offenses. 	Id. at 251, 511 S.E.2d at
434. 	"In so holding, we follow[ed] '[t]he general rule . . .
that when a convicted felon acquires two or more firearms in one
transaction and stores and possesses them together, he commits
only one offense.'" 	Id. (quoting United States v. Mullins, 698
F.2d 686, 687 (4th Cir. 1983)). 	Where, however, the evidence
establishes that multiple firearms were separately possessed at
different times, the rule does not apply and separate possession
offenses exist. 	See United States v. Dunford, 148 F.3d 385, 390
(4th Cir. 1998); Mullins, 698 F.2d at 687.
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For purposes of this appeal, we assume, without deciding,
that the "single possession doctrine" applies to Code
§ 18.2-96.1(D). 	Here, the evidence proved that Clay burglarized
the victim's home and stole six firearms in a single larcenous
transaction. 	However, Clay was found in possession of the three
subject guns with altered serial numbers at different times.
The altered Ruger pistol was found in his possession on March 3,
2000. 	The altered BSA rifle was found in Clay's possession on
March 8, 2000. 	Lastly, the altered Smith and Wesson handgun was
found in his possession on March 9, 2000. 	At none of those
times was Clay found to be in possession of more than one of the
three altered guns. 	Furthermore, Clay concedes the serial
numbers on the stolen guns were altered after he stole them on
February 25, 2000.
Because the evidence supports the finding that Clay
separately possessed the three firearms with altered serial
numbers at different times, we conclude that the "single
possession doctrine" has no applicability here. 	"Thus, each
distinguishable incident of the offending conduct constitutes a
'unit of prosecution' for violation of the statute." 	Shears v.
Commonwealth, 23 Va. App. 394, 401, 477 S.E.2d 309, 312 (1996).
Hence, we hold that the trial court did not err in convicting
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Clay of three separate counts of possession of a firearm with an
altered serial number.
Accordingly, we affirm Clay's convictions.
Affirmed.
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