PRESENT: All the Justices
JONTREIL LAMAR BAKER OPINION BY v. Record No. 120252 JUSTICE LEROY F. MILLETTE, JR. November 1, 2012 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether evidence of the
possession of one firearm on three separate occasions can
constitute three separate charges for possession of a firearm
by a convicted felon in violation of Code § 18.2-308.2(A).
I. Background
Jontreil Lamar Baker, a convicted felon, and Calvin
Williams visited Charna Chapman in the home that she shared
with a roommate in Suffolk. During their visit, Chapman showed
Baker her Hi-Point Firearms .380 caliber pistol. Baker offered
to purchase the firearm, but Chapman refused to sell.
The next day, Chapman and her roommate returned home to
find that the door they had locked just hours before was now
easily pushed open. The home had been burglarized and
Chapman's firearm was missing. While they were away, Baker had
entered the home through a window, taken the firearm, and left
out of the front door. When Williams picked him up a block
away from the home just minutes after the burglary, Baker
displayed the firearm as he entered the car. Several weeks later, Baker showed Marvin Donnell McKinney
a Hi-Point .380 caliber pistol, which he offered to sell.
After noting his interest, McKinney contacted Detective William
N. Shockley of the City of Suffolk Police Department to inform
him of the offer. Detective Shockley and McKinney organized a
"controlled purchase" of the firearm to occur the following
day. Detective Shockley observed McKinney meet with Baker and
receive a Hi-Point .380 caliber pistol in exchange for $225.
The firearm was later confirmed to be Chapman's missing
firearm.
Baker was arrested and tried in the Circuit Court of the
City of Suffolk. He was convicted of three counts of
possession of a firearm by a convicted felon in violation of
Code § 18.2-308.2(A). * Baker sought review in the Court of
Appeals, where he argued that the trial court erred in
convicting him of three counts of possession of a firearm by a
convicted felon because he should have been convicted of only
one continuous possession.
The Court of Appeals disagreed with Baker, holding that
" 'the number of occasions' appropriately delineates the unit
* Baker was also convicted of statutory burglary in violation of Code §§ 18.2-90 and 18.2-91, grand larceny of a firearm in violation of Code § 18.2-95, and conspiracy to commit statutory burglary and/or grand larceny of a firearm in violation of Code § 18.2-22. On appeal, Baker does not challenge these three convictions.
2 of prosecution constituting one offense of 'possession' under
Code § 18.2-308.2." Baker v. Commonwealth, 59 Va. App. 146,
153, 717 S.E.2d 442, 445 (2011) (quoting Brown v. Commonwealth,
Record No. 1438-00-1 (June 12, 2001)). The Court of Appeals
upheld all three possession convictions, holding that an
"occasion" is defined as a "particular occurrence" or a
"particular time," and that each of the convictions was based
on "distinguishable incidents." Id. at 152-54, 717 S.E.2d at
445-46.
II. Analysis
Baker contends that the Court of Appeals erred in
affirming his three convictions for possession of a firearm by
a convicted felon under Code § 18.2-308.2(A) because the
conduct charged should have constituted one continuous
possession. He claims that the use of the concept of separate
"occasions" as the relevant unit of prosecution fails to
describe what length or duration of possession is sufficient to
constitute a separate offense. Baker argues that under this
ambiguous standard, a felon who comes into possession of a
firearm, takes it home, and places it in a safe for a year
could be convicted of 365 separate violations of Code § 18.2-
308.2(A).
According to the Commonwealth, each separate and distinct
occasion would constitute a separate possession under Code
3 § 18.2-308.2(A), thereby justifying three separate convictions
of Baker under the statute. In response to Baker's contention
that such a finding could lead to 365 convictions for a year of
continuous possession of a firearm in a locked safe, the
Commonwealth points out that such a situation could not occur
because separate and distinct occasions of possession must be
proven by the Commonwealth for each individual conviction. The
Commonwealth contends that if a firearm remained untouched in a
safe for 365 days, nothing separate or distinct would occur to
establish a new occasion under the statute. Nor would there be
evidence to prove possession on each of the 365 days of that
year. We agree with the Commonwealth that the three
convictions should be affirmed as each is a separate and
distinct act or occurrence of possession, however, we reject as
unclear the term "unit of prosecution" previously employed by
the Court of Appeals.
In this issue of statutory construction, we conduct a de
novo review. Kozmina v. Commonwealth, 281 Va. 347, 349, 706
S.E.2d 860, 862 (2011). Code § 18.2-308.2(A) provides, in
pertinent part, "[i]t shall be unlawful for . . . any person
who has been convicted of a felony . . . to knowingly and
intentionally possess or transport any firearm . . . or to
knowingly and intentionally carry about his person, hidden from
common observation, any weapon described in subsection A of
4 § 18.2-308." In interpreting this statute, "courts apply the
plain meaning . . . unless the terms are ambiguous or applying
the plain language would lead to an absurd result." Boynton v.
Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006). A
statute is considered ambiguous "if the text can be understood
in more than one way or refers to two or more things
simultaneously or when the language is difficult to comprehend,
is of doubtful import, or lacks clearness or definiteness."
Id. at 227 n.8, 623 S.E.2d at 926 n.8 (citations, internal
quotation marks, and alteration omitted). This statute, Code
§ 18.2-308.2(A), lacks definition and is therefore ambiguous as
to whether possession of a single firearm on different dates or
at different times constitutes one continuous offense or
multiple offenses.
Since we find the statute ambiguous as to when one offense
ends and the next begins, we join the Court of Appeals of
Virginia and the appellate courts of many other jurisdictions
in using the gravamen of the offense to determine the
legislature's intent. See, e.g., Acey v. Commonwealth, 29 Va.
App. 240, 249-50, 511 S.E.2d 429, 433-34 (1999) (finding
simultaneous possession of multiple firearms does not justify
multiple convictions for possession because the possession of a
firearm by a felon is, of itself, the dangerousness that is the
gravamen of the offense of possession); United States v. Evans,
5 854 F.2d 56, 60 (5th Cir. 1988) (determining that the making of
a false statement, not the acquisition of the firearm, was the
gravamen of the offense of the crime of furnishing false
identification made in connection with the purchase of firearms
and ammunition); Bautista v. State, 863 So. 2d 1180, 1186-87
(Fla. 2003) (finding the gravamen of the offense of DUI
manslaughter to be the killing of a human being rather than a
traffic violation).
In creating this statutory offense, the General Assembly
recognized that each act of possessing the firearm places the
public in a heightened level of danger that does not coincide
with the defendant's initial receipt of the firearm. This is
evidenced by the language of Code § 18.2-308.2(A), which, along
with possession of a firearm, includes specific prohibitions
against the distinct acts of transporting a firearm and
"carry[ing] about [the felon's] person, hidden from common
observation, any weapon" named in the statute. We have held
that "every part of a statute is presumed to have some effect
and no part will be considered meaningless unless absolutely
necessary." Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340,
497 S.E.2d 335, 338 (1998). We therefore find that the
inclusion of these specific references expresses the General
Assembly's intent that separate instances of possession, and
therefore of heightened danger to the community, be punished
6 separately. If the statute was meant to restrict the offense
only to the receipt, initial possession, or even extended
possession of the weapon, such a specific reference to the
transporting or carrying of that weapon would be a frivolous
and unnecessary addition to the statutory language. The
implicit danger in each separate instance of possession was
also noted by the Court in Armstrong v. Commonwealth, 263 Va.
573, 582-83, 562 S.E.2d 139, 144 (2002), where we found a felon
"unfit to possess firearms," making each possession of a
firearm by a felon, whether for a lawful or unlawful purpose,
the conduct the General Assembly intended to curtail.
The General Assembly's goal in punishing a convicted felon
for possessing or transporting a firearm is therefore not
limited to preventing a felon's receipt or initial possession
of a firearm, but extends to the prevention of the heightened
danger each new instance of possession creates. In light of
the legislative intent behind this provision, each separate
incident of possession of a firearm by a convicted felon proven
by the Commonwealth establishes a new offense because each
incident is sufficient to create a new danger to members of the
community exposed to the armed felon.
This is a position similar to those taken by other
jurisdictions with regards to the distinction between separate
offenses of possession, and it is consistent with the harm that
7 the General Assembly intended to address with this statute.
See United States v. Jones, 841 F.2d 1022, 1024 (10th Cir.
1988) (finding no division between unlawful receipt and
unlawful possession of a firearm because no new date or
specific act or transaction was proven by the government);
Melton v. State, 842 A.2d 743, 757 (Md. 2004) (holding that
only a single conviction was justified when the defendant
committed only one act of possession but was a member of more
than one of the nine listed classes prohibited from possessing
the firearm); State v. Johnson, No. 52370-8-I, 2004 Wash. App.
LEXIS 1132, at *8-11 (Wash. Ct. App. June 1, 2004)
(unpublished) (explaining that "any firearm" in the possession
statute indicated an intention that each "separate instance of
unlawful possession . . . constitute a violation").
In accordance with the gravamen of the offense, we hold
that a new offense of possession can be established with each
separate act or occurrence that can be proven by the
government. Under this analysis, each of the three convictions
under Code § 18.2-308.2(A) derive from distinct offenses. The
first conviction was based on the possession of the firearm the
day it was stolen, supported by evidence of the burglary and
Williams' testimony that the firearm was displayed to him by
Baker on the same day. The second conviction was based on the
possession of the same firearm several weeks later, supported
8 by evidence of Baker's attempt to sell the firearm to McKinney.
The final conviction was for the possession, display, and sale
of the firearm by Baker the following day, which was observed
by Detective Shockley and testified to by the recipient of the
firearm. These incidents constitute distinct acts or
occurrences, each reflecting an enhanced danger to the public,
and convictions for the three separate charges on the facts of
this case are therefore valid under Code § 18.2-308.2(A).
III. Conclusion
For the foregoing reasons, we hold that the Court of
Appeals did not err in affirming the three convictions under
Code § 18.2-308.2(A) for separate acts or occurrences as proven
by the Commonwealth. We will affirm the judgment of the Court
of Appeals.
Affirmed.
JUSTICE POWELL, dissenting.
In my opinion, the majority fails to apply a crucial rule
of statutory construction applicable to unit of prosecution
cases such as this one. In so doing, the majority ignores the
necessary application of the rule of lenity requiring that we
construe an ambiguous statute in a criminal defendant’s favor.
Therefore, I must respectfully dissent.
As the majority correctly notes, Code § 18.2-308.2(A) is
ambiguous as to what the proper unit of prosecution is under
9 the statute. Code § 18.2-308.2(A) does not indicate
unambiguously whether the General Assembly intended to create a
separate offense for each “occasion” on which a felon possesses
a firearm during a certain period of time. To resolve the
ambiguity, we must look to the General Assembly’s intent in
enacting the statute.
In attempting to ascertain the General Assembly’s intent,
the majority is correct that we must look to the gravamen of
the offense. However, we must also be mindful of the fact that
“[w]hen a penal statute is unclear, the statute must be
strictly construed against the Commonwealth and in favor of an
accused’s liberty, and the accused is entitled to the benefit
of any reasonable doubt concerning the statute's construction.”
Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825
(1998) (emphasis added). Indeed, we have previously recognized
that, before the accused can be punished, “‘his case must be
plainly and unmistakably within the statute.’” Harward v.
Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985)
(quoting United States v. Lacher, 134 U.S. 624, 628 (1890)).
The United State Supreme Court has provided guidelines for
the proper application of such a rule of lenity:
When Congress has the will it has no difficulty in expressing it – when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When
10 Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses . . . .
Bell v. United States, 349 U.S. 81, 83-84 (1955) (emphasis
added).
In the present case, it is undisputed that the “gravamen
of the offense” under Code § 18.2-308.2 is “the possession of a
firearm by a felon.” Acey v. Commonwealth, 29 Va. App. 240,
250, 511 S.E.2d 429, 433-34 (1999) (emphasis added).
Furthermore, it has been recognized that “[p]ossession is by
nature a continuing offense.” Jordan v. Virginia, 653 F.2d
870, 875 (4th Cir. 1980); see also Morris v. Commonwealth, 51
Va. App. 459, 467, 658 S.E.2d 708, 712 (2008). “A continuing
offense is a continuous, unlawful act or series of acts set on
foot by a single impulse and operated by an unintermittent
force, however long a time it may occupy.” United States v.
11 Midstate Horticultural Co., 306 U.S. 161, 166 (1939) (internal
quotation marks omitted).
It has been recognized that
cases involving multiple convictions under a single statutory provision. . . . are often referred to as “unit of prosecution” cases, as they consider whether the conduct at issue was intended to give rise to more than one offense under the same provision.
United States v. McLaughlin, 164 F.3d 1, 14 (D.C. Cir. 1998)
(emphasis added). The present case is clearly a unit of
prosecution case as it only involves a single statute: Code
§ 18.2-308.2(A). In applying the rule of lenity espoused in
Bell to a unit of prosecution case involving a continuous
offense, such as possession, appellate courts have
overwhelmingly held that a continuous offense can only be
charged as a single offense. See United States v. Ellis, 622
F.3d 784, 793 (7th Cir. 2010); United States v. Hope, 545 F.3d
293, 296 (5th Cir. 2008); United States v. Finley, 245 F.3d
199, 208 (2d Cir. 2001); United States v. Rivera, 77 F.3d 1348,
1351 (11th Cir. 1996); United States v. Horodner, 993 F.2d 191,
193 (9th Cir. 1993); United States v. Jones, 841 F.2d 1022,
1023 (10th Cir. 1988), (recognizing that “ambiguity in the
definition of conduct to be punished must be settled against
turning a single transaction into multiple offenses”).
I am particularly persuaded by the United States Court of
Appeals for the Sixth Circuit’s decision in United States v.
12 Jones, 533 F.2d 1387 (6th Cir. 1976). The facts of Jones are
markedly similar to the present case as both cases involve a
convicted felon who was observed to have possession of the same
firearm on three separate occasions over a three year period
which ultimately resulted in three convictions for possession
of a firearm by a convicted felon. Id. at 1389-90. In
reversing two of the convictions, the Sixth Circuit explained:
It is true that in the case at bar the Government is claiming that Jones possessed the pistol on three separate occasions, not that continuous possession existed which has been broken down into arbitrary time period[s]. With equal propriety the Government might have charged Jones with possession on more than 1100 separate days and obtained convictions to imprison Jones for the rest of his life. The fact that the Government merely has proof that he possessed the same weapon on three separate occasions, rather than continuously for a three-year period, should not dictate the result that Jones could receive three times the punishment he would face if continuous possession for a three-year period were proved. There is no proof that there was any interruption in the possession by Jones of the weapon.
Id. at 1391 (emphasis added). The majority in this case,
however, would require a different result.
I am also not persuaded by the majority’s reliance on the
General Assembly’s inclusion of “specific prohibitions.” The
plain language of Code § 18.2-308.2(A) prohibits a convicted
felon from
knowingly and intentionally possess[ing] or transport[ing] any firearm or ammunition for a firearm, any stun weapon as defined by § 18.2-308.1,
13 or any explosive material, or . . . knowingly and intentionally carry[ing] about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308.
(Emphasis added.)
In making its argument, the majority fails to recognize
the significance of the disjunctive “or” that immediately
proceeds the “specific prohibitions” upon which it relies as
well as the subsequent change in verbiage regarding the
prohibited acts. As evidenced by the use of the word “or,”
possessing a firearm can be distinguished from carrying a
concealed weapon. While every weapon that is concealed is
possessed, not every weapon possessed is concealed. Indeed, it
is worth noting that the “specific prohibitions” set forth in
Code § 18.2-308.2(A) do not prohibit a convicted felon from
possessing many of the weapons delineated (firearms being the
obvious exception); rather, that portion of the statute only
prohibits a convicted felon from carrying and concealing those
weapons about his person. Thus, had Baker been charged with
carrying a concealed firearm on each of the three occasions,
only then would the specific prohibitions be applicable.
Moreover, the presence of this change in verbiage clearly
demonstrates the General Assembly’s ability to distinguish a
distinct unit of prosecution where it elects to do so. In the
absence of such an election by the General Assembly, the
14 statute is clearly ambiguous and our jurisprudence requires
that we apply the rule of lenity. See Waldrop, 255 Va. at 214,
495 S.E.2d at 825. In my opinion, the proper course of action
is to follow the guidelines established in Bell. Such
application would necessarily require this Court to hold that
the General Assembly only intended to punish as a single
offense all acts of dominion demonstrating uninterrupted
possession of the firearm. If the General Assembly had
intended to punish each time a felon is witnessed to be in
possession of a firearm, as the majority suggests, it could
have done so by forbidding each act of dominion instead of the
entire course of conduct.
It is further worth noting that the majority’s stated
holding necessitates reversal in the present case. The
majority specifically holds that “a new offense of possession
can be established with each separate act or occurrence that
can be proven by the government.” However, as previously
discussed, possession is a continuing offense. Therefore, it
is axiomatic that, in order for there to be a separate act or
occurrence of possession, there must be some form of
interruption in the initial act or occurrence of possession.
See, e.g., Rivera, 77 F.3d at 1351 (“Where there is no proof
that possession of the same weapon is interrupted, the
Government may not arbitrarily carve a possession into separate
15 offenses”); United States v. Conley, 291 F.3d 464, 470 (7th
Cir. 2002) (“a felon may be charged and convicted of two counts
of possessing the same firearm only if: (1) he possesses the
weapon; (2) he is aware that his possession of the weapon has
been interrupted; and (3) he thereafter reacquires possession
of the weapon himself.”). In other words, the defendant must
have been dispossessed of the firearm before there can be a
separate act or occurrence of possession. As there is no
evidence of Baker being dispossessed of the firearm, there is
only a single act or occurrence of possession.
For all the foregoing reasons, I cannot join in the
majority’s opinion. Rather, I would hold that a proper
application of the rule of lenity demonstrates that the
evidence in the present case only supports one conviction for
Baker’s continuous possession of the firearm. Accordingly, I
would reverse the decision of the Court of Appeals, affirm the
trial court as to one count of possession of a firearm by a
convicted felon and dismiss the remaining two counts of
possession of a firearm by a convicted felon.