Samuel H. Kingrey, III v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 13, 1999
• Docket: 2202972
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Lemons Argued at Richmond, Virginia

SAMUEL H. KINGREY, III MEMORANDUM OPINION * BY v. Record No. 2202-97-2 JUDGE DONALD W. LEMONS JULY 13, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY George F. Tidey, Judge

John B. Boatwright, III (Boatwright & Linka, on briefs), for appellant.

Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Samuel H. Kingrey, III was convicted in a bench trial of

possession of a concealed weapon as a convicted felon, a

violation of Code § 18.2-308.2. On appeal, he contends that the

evidence is insufficient to support his conviction. We disagree

and affirm his conviction.

I. BACKGROUND

On March 29, 1997, Officer Hunter of the Henrico County

Police Department received a radio call that there was a fight

at the Crown Gas Station in Henrico County. When Hunter arrived

at the scene he determined that Kingrey had assaulted his

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. girlfriend. Hunter placed Kingrey under arrest and conducted a

search incident to his arrest. In Kingrey’s right front pocket

Hunter found a pocketknife and in his right rear pocket he found

what is commonly called a “butterfly knife.” Hunter described

the knife as “one that can be easily whipped around and swung”

and “[i]t’s more of a fighting knife. It’s not like a cutting

knife or a paring knife.” Hunter estimated the knife to be

approximately “three to four inches” in length. He further

testified that the butterfly knife was totally concealed in

Kingrey’s back pocket. Kingrey was charged with possession of a

concealed weapon by a convicted felon, a violation of Code

§ 18.2-308.2. At the conclusion of the trial, Kingrey moved the

court to dismiss the charge contending that the knife in

question was not a weapon within the definition of Code

§ 18.2-308. Kingrey was found guilty of possession of a

concealed weapon by a convicted felon. On appeal, Kingrey

maintains that the evidence was insufficient to support the

conviction.

II. SUFFICIENCY OF THE EVIDENCE

When the sufficiency of the evidence is an issue on appeal,

the evidence must “be viewed in the light most favorable to the

Commonwealth, the prevailing party below, granting to it all

reasonable inferences, and the judgment of the trial court must

be affirmed unless it appears that it is plainly wrong, or

without evidence to support it.” Beavers v. Commonwealth, 245

- 2 - Va. 268, 281-82, 427 S.E.2d 411, 421 (1993). On appeal, the

decision of a trial court sitting without a jury is afforded the

same weight as a jury’s verdict and will not be disturbed unless

plainly wrong or without evidence to support it. See King v.

Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977).

Kingrey was convicted of possession of a concealed weapon

by a convicted felon in violation of Code § 18.2-308.2, which

prohibits any person who has been convicted of a felony from

“knowingly and intentionally [carrying] about his person, hidden

from common observation, any weapon described in § 18.2-308.”

Code § 18.2-308 states in relevant part:

A. If any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind; or (ii) any dirk, bowie knife, switchblade knife, ballistic knife, razor, slingshot, spring stick, metal knucks, or blackjack; or . . . (v) any weapon of like kind as those enumerated in this subsection . . . .

Kingrey contends that the knife found in his right rear

pocket is neither one of the statutorily enumerated weapons nor

is a weapon of “like kind” and therefore cannot support a

conviction for a violation of Code § 18.2-308.2. We have

previously stated that when construing Code § 18.2-308, “[t]he

determination of whether a particular knife falls within the

meaning of a term used in the statute is a question fact to be

determined by the trier of fact.” Richards v. Commonwealth, 18

- 3 - Va. App. 242, 246 n.2, 443 S.E.2d 177, 179 n.2 (1994). At

trial, the arresting officer testified that the knife was “one

that can easily be whipped around and swung open. It’s more of

a fighting knife. It’s not like a cutting knife or a paring

knife or something like that.”

Absent statutory definition we must seek ordinarily

accepted meanings given to terms in the context of their use.

Websters Third New International Dictionary (1993), defines the

following terms:

dirk 1: a long straight-bladed dagger formerly carried esp. by the Scottish Highlander 2: a short sword formerly worn by British junior naval officers.

Id. at 642.

dagger 1a: a short knife used for stabbing . . . .

Id. at 570.

sword 1a: a weapon with a long blade for cutting or thrusting set in a hilt usu. terminating in a pommel and often having a tang or a protective guard where the blade joins the handle . . . .

Id. at 2314.

The trial court found Kingrey guilty without enumerating

whether the weapon in question was one of the enumerated items

or a “weapon of like kind.” Given the definitions recited

above, the butterfly knife, when opened, most closely resembles

- 4 - a dirk. The knife easily opens and was described by the police

officer as a “fighting knife.” Based upon its appearance, it is

a weapon of “like kind” to a dirk contemplated in the statute.

In construing Code § 18.2-308 the Supreme Court of Virginia has

said that “the purpose of the statute was to interdict the

practice of carrying a deadly weapon about the person,

concealed, and yet accessible as to afford prompt and immediate

use.” Schaaf v. Commonwealth, 220 Va. 429, 430, 258 S.E.2d 574,

574-75 (1979) (quoting Sutherland’s Case, 109 Va. 834, 835-36,

65 S.E. 15, 15 (1909)). Based upon this record, we cannot say

that the trial court was plainly wrong or without evidence to

support the verdict. The conviction is affirmed.

Affirmed.

- 5 - Benton, J., dissenting.

At the conclusion of the evidence, the trial judge looked

at the knife Samuel H. Kingrey possessed and asked “[i]ts not a

paring knife either, is it . . . ?” The trial judge made no

other comment that could be interpreted as a finding concerning

the knife. On appeal, the Commonwealth contends the knife was

“a dirk, or a weapon of like kind” and also “was a weapon of

like kind to a ‘switchblade knife.’” However, the record does

not establish that the knife was anything other than a variation

of a pocketknife.

“In accordance with generally accepted principles, ‘penal

statutes must be strictly construed against the Commonwealth and

applied only to those cases clearly falling within the language

of the statute.’” Ricks v. Commonwealth, 27 Va. App. 442, 444,

499 S.E.2d 575, 576 (1998) (citation omitted). Code § 18.2-308

does not prohibit the carrying of pocketknives or knives of like

kind. See Wood v. Henry County Public Schools, 255 Va. 85, 95,

495 S.E.2d 255, 261 (1998) (holding that “a pocketknife is

neither a dirk, bowie knife, switchblade knife, ballistic knife,

nor a weapon of like kind”). Kingrey’s knife contained a blade

that folded into the handle and was fit for being carried in a

pocket. It was a pocketknife.

I would reverse the conviction.

- 6 -