                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Decker, Judge Beales and Retired Judge Bumgardner*
            Argued at Richmond, Virginia
PUBLISHED




            HOWARD ALLEN GROFFEL
                                                                              OPINION BY
            v.     Record No. 0485-18-2                           CHIEF JUDGE MARLA GRAFF DECKER
                                                                            AUGUST 20, 2019
            COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF NEW KENT COUNTY
                                           B. Elliott Bondurant, Judge

                           Ivan D. Fehrenbach (D.R. Dansby, Ltd, on briefs), for appellant.

                           Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Howard Allen Groffel appeals four of his five convictions and sentences for transporting

            a firearm while subject to a protective order in violation of Code § 18.2-308.1:4(A) and his

            conviction for possessing ammunition after conviction of a felony in violation Code

            § 18.2-308.2. He argues that the punishments for these convictions violate the constitutional

            prohibition against double jeopardy. For the reasons that follow, we affirm the convictions and

            sentences for transporting a firearm while subject to a protective order. However, we reverse

            and remand the case for reconsideration of the convictions and sentences for possession of a

            firearm and possession of ammunition in a manner consistent with this opinion.




                   *
                     Retired Judge Bumgardner took part in the hearing and decision of this case by
            designation pursuant to Code § 17.1-400(D).
                                       I. BACKGROUND1

       On April 25, 2017, the appellant was convicted in general district court and sentenced to

jail. He escaped custody by walking away while unattended. When law enforcement captured

him that night, he had a revolver strapped to his ankle.

       At the time of the escape and apprehension, the appellant was subject to five separate

protective orders. Of these five protective orders, three were obtained by adults, each of whom

petitioned on his or her own behalf. The other two orders were entered by the juvenile and

domestic relations district court to protect the appellant’s two children.

       While in jail, the appellant called a neighbor and asked him to move and sell property

that the appellant kept in his shed. In the shed was a cabinet, in which the neighbor found an

AK-47 assault rifle, a “12-gauge Winchester pump shotgun,” ammunition for the two firearms,

and ammunition for a “30-30” rifle. Captain John McLaughlin with the New Kent County

Sheriff’s Office, who had monitored the phone call between the appellant and his neighbor, went

to the neighbor’s house and collected the firearms and ammunition as evidence.

       The Commonwealth charged the appellant, in pertinent part, with five counts of

transporting a firearm while subject to a protective order and two counts of possessing a firearm

or ammunition after previously being convicted of a felony. The appellant filed a motion to

dismiss in which he argued that his constitutional protection against double jeopardy was

violated by the five charges of transporting a firearm while subject to a protective order and

additionally by the two charges of possession of a firearm or ammunition by a convicted felon.




       1
         Although the facts are undisputed at this point in the case, we note that appellate courts
“are bound by the underlying factual issues determined by the fact finder unless they are plainly
wrong or unsupported by the evidence.” Commonwealth v. Davis, 290 Va. 362, 368-69 (2015)
(quoting Loudoun Hosp. Ctr. v. Stroube, 50 Va. App. 478, 493 (2007)).

                                                -2-
The trial court denied the motion.2 In doing so, the judge commented that the five protective

orders were issued by different courts to protect different individuals. Regarding the possession

charges, the trial court noted that the separate charge for possession of ammunition was based on

ammunition that did not match the types of firearms found with it.

       Following the presentation of the evidence, the trial court found the appellant guilty of

five counts of transporting a firearm while subject to a protective order and two counts of

possessing a firearm or ammunition after conviction for a felony.3 The court sentenced him to a

total of fifteen years in prison, with six years suspended, for these offenses.

                                          II. ANALYSIS

       The appellant contends that he received multiple convictions and punishments for the

same offense in violation of the constitutional protection against double jeopardy.

       “The Fifth Amendment to the Constitution of the United States declares that no person

shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’” Severance v.

Commonwealth, 295 Va. 564, 571-72, 572 n.8 (2018) (quoting U.S. Const. amend. V) (noting

that the Virginia Constitution provides the same protections). This prohibition includes

protection from “multiple punishments for the same offense.” Id. at 572 (quoting

Commonwealth v. Gregg, 295 Va. 293, 298 (2018)). “We review de novo whether ‘multiple

punishments have been imposed for the same offense in violation of the double jeopardy

clause.’” Gregg, 295 Va. at 296 (quoting Johnson v. Commonwealth, 292 Va. 738, 741 (2016)).


       2
         The court granted the Commonwealth’s motions to dismiss by nolle prosequi the charge
of carrying a concealed weapon and one charge of possession of ammunition by a convicted
felon.
       3
          The appellant was also convicted of escape by a prisoner, grand larceny, four counts of
credit card theft, entering a motor vehicle to commit a crime, and a third count of possession of a
firearm within ten years of conviction of a felony. Those convictions are not before the Court at
this stage of the appeal because the petition for appeal as to the related assignments of error was
denied.
                                                 -3-
        “When considering multiple punishments for a single transaction, the controlling factor is

legislative intent.” Id. at 298 (quoting Kelsoe v. Commonwealth, 226 Va. 197, 199 (1983)). In

determining legislative intent, the court first looks to the plain language of the statute. Baker v.

Commonwealth, 284 Va. 572, 576 (2012). “If the language is clear and unambiguous, [an

appellate court] will assign the statute its plain meaning.” Browning-Ferris Indus. of S. Atl. v.

Residents Involved in Saving the Env’t, Inc., 254 Va. 278, 284 (1997). Additionally, we must

“give effect to the legislature’s intention as expressed by the language used unless a literal

interpretation of the language would result in a manifest absurdity.” Conyers v. Martial Arts

World of Richmond, Inc., 273 Va. 96, 104 (2007). On the other hand, if the statutory language is

ambiguous, the court must rely on “the gravamen of the offense to determine the legislature’s

intent” regarding the permissible unit of prosecution. See Baker, 284 Va. at 576; see also

Johnson, 292 Va. at 741-42 (examining legislative intent in order to determine “the unit of

prosecution”); Acey v. Commonwealth, 29 Va. App. 240, 250-51 (1999) (analyzing the

gravamen of an offense in considering “the unit of prosecution by which the state may assess

punishment”).

        The appellant argues that the constitutional protection against double jeopardy precludes

his multiple convictions and sentences under Code § 18.2-308.1:4(A) for transporting a firearm

while subject to multiple protective orders. He also contends that his two convictions and

punishments under Code § 18.2-308.2 for simultaneous possession of a firearm and ammunition

violate double jeopardy.

                       A. Protective Orders Under Code § 18.2-308.1:4(A)

        Code § 18.2-308.1:4(A) provides, in pertinent part, that “[i]t is unlawful for any person

who is subject to . . . a protective order . . . to purchase or transport any firearm while the order is

in effect.” The appellant’s transportation of the firearm found strapped to his ankle when he was

                                                 -4-
captured and arrested while subject to five protective orders was the basis for five separate

convictions and corresponding sentences. The question for this Court to resolve is whether the

statute penalizes the act of purchasing or transporting a firearm while subject to multiple

protective orders as a single offense or as multiple ones subject to separate punishments.

        In answering this question, we first look to the statutory language. See Baker, 284 Va. at

576. Only if the plain text is ambiguous do we “us[e] the gravamen of the offense to determine

the legislature’s intent.” Id.

        The language in Code § 18.2-308.1:4(A) is ambiguous on this point because it “can be

understood in more than one way.” See id. (quoting Boynton v. Kilgore, 271 Va. 220, 227 n.8

(2006)); see also Acey, 29 Va. App. at 250 (analyzing the gravamen of the offense of possession

of a firearm by a convicted felon in violation of Code § 18.2-308.2). On the one hand, the statute

prohibits the purchase or transportation of a firearm by a person subject to “a protective order.”

The use of the singular “a” suggests that for each protective order in place, the act of purchase or

transportation of a firearm constitutes a separate offense. Johnson, 292 Va. at 742 (holding that

the statutory phrase “‘a’ felony” provided that “each felony charge could serve as the predicate

of a failure to appear conviction”). On the other hand, the language “any person who is subject

to” suggests that the statute describes a class of people who are forbidden from buying or

transporting firearms and that the prohibited conduct is the purchase or transportation regardless

of the number of protective orders in place. See United States v. Dunford, 148 F.3d 385, 388-89

(4th Cir. 1998) (holding that possession of a firearm or ammunition is a single offense regardless

of the number of disqualifying classes to which a defendant belongs).

        As a result of this ambiguity, we must look to the gravamen, or essence, of the crime.

We conclude that the purpose of Code § 18.2-308.1:4 is to protect the individuals who are the

subjects of the protective orders. In some circumstances, a petitioner obtains a protective order

                                                -5-
on his or her own behalf. See generally Code §§ 16.1-253.1, -279.1 (allowing issuance of a

protective order against an allegedly abusive person in order “to protect the health and safety of

the petitioner [or any] family or household member[] of the petitioner”). In others, “[u]pon the

motion of any person or upon the court’s own motion,” a court may enter a protective order to

protect a child who has been subjected to parental abuse or neglect. See Code §§ 16.1-253(A),

(F), -278.2(C). Each protective order entered to safeguard a unique principal protected person

(the principal), whether a petitioner or a child of an allegedly abusive or neglectful parent, “has a

separate existence with separate consequences and effects.” See Johnson, 292 Va. at 742

(discussing summonses and felony charges).4 The focus of Code § 18.2-308.1:4 must be upon

the principal whom each protective order is in place to protect. Therefore, the gravamen of the

offense of the purchase or transportation of a firearm by a person subject to a protective order is

the occurrence of the act while the protective order is in effect.

       This purpose and gravamen contrast with those of a statute prohibiting possession of a

firearm. The purpose of a firearm possession statute is to protect society generally from the

individual who belongs to a described class or group such as previously convicted felons. See

Baker, 284 Va. at 578. Consequently, the gravamen of the offense of possession of a firearm by

a convicted felon is the possession itself. See Acey, 29 Va. App. at 250. Here, the gravamen of

an offense under Code § 18.2-308.1:4 is not possession, but it is the purchase or transportation of

a firearm while the protective order is in effect because the purpose of the statute is to protect

each principal.




       4
         Johnson distinguished “possessory offenses like the possession of illegal drugs.”
Johnson, 292 Va. at 743 n.1. The Court reasoned that the statute at issue in that case, for the
offense of failure to appear, resulted from a different legislative intent than statutes criminalizing
possession. Id. As noted infra, Code § 18.2-308.1:4(A) likewise has a different legislative intent
than general possession statutes and consequently the gravamen of the offense is not possession.
                                                 -6-
       In support of his argument that the possession is the gravamen of an offense under Code

§ 18.2-308.1:4, the appellant relies on cases interpreting 18 U.S.C. § 922(g). See United States

v. Borer, 394 F.3d 569, amended by 412 F.3d 987 (8th Cir. 2015); United States v. Baker, 197

F.3d 211 (6th Cir. 1999); Dunford, 148 F.3d 385; United States v. Ocampo, 919 F. Supp. 2d 898

(E.D. Mich. 2013). The federal subsection prohibits, in pertinent part, “any person” within the

listed categories from “possess[ing] . . . any firearm or ammunition.” 18 U.S.C. § 922(g). The

categories include people who are subject to protective orders, convicted felons, fugitives from

justice, “unlawful user[s] of or addicted to any controlled substance,” people who have been

committed to a mental institution, aliens unlawfully in the United States, and those who have

been convicted of domestic violence. 18 U.S.C. § 922(g)(1)-(5), (8)-(9). While the United

States Congress chose to prohibit these categories of individuals from having access to firearms

by grouping them together in a subsection as a single “possession” offense, the Virginia

legislature enacted separate statutes to restrict access, possession, and transportation of firearms

for certain groups.5 This distinction signifies the Virginia General Assembly’s conclusion that

the different groups of individuals under restrictions are dissimilar and subject to different

limitations as well as penalties. As a result of this contrast between the federal and state law, the

federal cases interpreting 18 U.S.C. § 922(g) are inapposite to application of Code

§ 18.2-308.1:4.

       The appellant also relies on the principle that if the statutory language at issue can be read

to impart two reasonable and contradictory interpretations, a court should construe the statute in

the accused’s favor. See McGinnis v. Commonwealth, 296 Va. 489, 504 (2018). However, this


       5
          Those groups include persons acquitted by reason of insanity, persons adjudicated
legally incompetent or mentally incapacitated, persons involuntarily admitted or ordered to
outpatient treatment, persons convicted of certain drug offenses, convicted felons, and aliens and
persons not admitted for permanent residence. See Code §§ 18.2-308.1:1, -308.1:2,
-308.1:3, -308.1:5, -308.2, -308.2:01.
                                               -7-
rule, known as the “‘rule of lenity,’” “does not permit a[n appellant] to benefit from an

unreasonably restrictive interpretation of the statute.” Id. (quoting Blake v. Commonwealth, 288

Va. 375, 386 (2014)). In other words, the general principle cannot apply to subvert the

legislature’s intent when such intent is ascertainable from the statute based on its language,

purpose, or gravamen. See Turner v. Commonwealth, 295 Va. 104, 109, cert. denied, 139 S. Ct.

123 (2018); Spratley v. Commonwealth, 69 Va. App. 314, 320 (2018). Accordingly, the

legislature’s intent to provide for multiple units of prosecution under Code § 18.2-308.1:4 based

on multiple protective orders in place to safeguard different principals outweighs application of

the rule of lenity.

        Turning to the facts of this case, while the appellant was subject to five different

protective orders protecting five different principals, he transported a firearm. This action

constituted five different violations of Code § 18.2-308.1:4(A). This conclusion comports with

the purpose of the statute to further safeguard the principal whom each of the orders was entered

to protect. It is also consistent with the gravamen of the offense, the purchase or transportation

of a firearm by a person subject to a protective order while the protective order is in effect.

        For these reasons, the appellant’s single act of transporting a firearm logically resulted in

separate and distinct charges based on the five protective orders entered to protect five different

principals. The five convictions and sentences did not violate the appellant’s constitutional

protection against double jeopardy. Consequently, we affirm the convictions and sentences for

transportation of a firearm by a person subject to a protective order.

                      B. Firearms and Ammunition Under Code § 18.2-308.2

        Code § 18.2-308.2, in pertinent part, prohibits “any person who has been convicted of a

felony” from “knowingly and intentionally possess[ing] or transport[ing] any firearm or

ammunition for a firearm.” Code § 18.2-308.2(A). The question raised by the appellant is

                                                -8-
whether the statute penalizes the simultaneous possession of firearms and of separate

ammunition that he stored in his shed as one offense or two.

       The first step in this analysis is to examine the statutory text. Baker, 284 Va. at 576. The

language in Code § 18.2-308.2 is ambiguous on this point because it “can be understood in more

than one way.” See id. (quoting Boynton, 271 Va. at 227 n.8); see also Acey, 29 Va. App. at 250

(analyzing the gravamen of the offense). Certainly, prohibition from possession of “any firearm

or ammunition for a firearm” can reasonably be read to allow two units of prosecution for a

defendant who possesses a firearm and ammunition at the same time and place. On the other

hand, the statute does not expressly provide that simultaneous possession of a firearm and

ammunition can constitute separate charges. See United States v. Clark, 184 F.3d 858, 871 (D.C.

Cir. 1999) (holding that 18 U.S.C. § 922(g)(1), which prohibits a convicted felon from

possessing “any firearm or ammunition,” is ambiguous on this point); cf. 720 Ill. Comp. Stat.

5/24-1.1(e) (“The possession of each firearm or firearm ammunition in violation of this Section

constitutes a single and separate violation.”).

       In two significant cases, the Supreme Court of Virginia and this Court analyzed Code

§ 18.2-308.2 and the gravamen of the offense. See Baker, 284 Va. at 576-77; Acey, 29 Va. App.

at 250. In Acey, 29 Va. App. at 250, this Court examined the statute in the context of the

number of firearms possessed at one time. It held that since “the possession of a firearm by a

felon is, of itself, the dangerous act, the number of weapons with which a felon is armed [is]

irrelevant.” Id. Consequently, the Court held that a single act of possession of multiple guns is

one offense under Code § 18.2-308.2. Id. at 251.

       In Baker, 284 Va. at 576-77, the Supreme Court considered the same statute in the

context of the duration of the offense of possession of a firearm by a convicted felon. Citing

Acey with approval, the Court held that the gravamen of the offense was each independent

                                                  -9-
“instance of possession.” Id. at 576-78. It reasoned that in enacting Code § 18.2-308.2, the

legislature “recognized that each act of possessing the firearm places the public in a heightened

level of danger” and concluded that “separate instances of possession, and therefore of

heightened danger to the community, [may] be punished separately.” Id. at 577 (emphasis

added).

          Acey and Baker establish that the offense of possession of a firearm or ammunition by a

convicted felon punishes “each separate incident of possession,” Baker, 284 Va. at 577, and not

the number of items possessed together, Acey, 29 Va. App. at 250. See also Clay v.

Commonwealth, 36 Va. App. 433, 436 (2001) (holding that separate possession offenses exist

when “multiple firearms were separately possessed at different times”). Under the current law,

this Court has already made clear that the hypothetical defendant who possesses one hundred

guns at one time could be penalized only once under the statute.6 Acey, 29 Va. App. at 250

(“Whether the felon bears one or one hundred firearms, the felon is ‘dangerously armed.’”).

Based on the facts of the instant case, if both the possession convictions and sentences were to

stand, it would mean that a defendant who simultaneously possesses one firearm and ammunition

to a different weapon could be punished for two offenses. This reasoning does not comport with

the analysis in Acey nor does it follow the legislature’s intent. The appellant is not inherently

more dangerous to the public than the hypothetical defendant with numerous weapons.

Appellate courts should not interpret a statute in such a way that “forces” it “into an ‘internally

inconsistent’ conflict.” See Tvardek v. Powhatan Vill. Homeowners Ass’n, Inc., 291 Va. 269,

280 (2016) (quoting Butler v. Fairfax Cty. Sch. Bd., 291 Va. 32, 37 (2015)). Consequently, we


          6
        By not amending Code § 18.2-308.2 to clearly impose multiple penalties for
simultaneous possession of multiple weapons, the General Assembly has demonstrated its
“approval” of the interpretation set forth in Acey, 29 Va. App. at 250-51. See Cygnus
Newport-Phase 1B, LLC v. City of Portsmouth, 292 Va. 573, 582 (2016) (quoting Manchester
Oaks Homeowners Ass’n v. Batt, 284 Va. 409, 428 (2012)).
                                                - 10 -
conclude that the holding in Acey regarding simultaneous possession of multiple firearms

extends to simultaneous possession of a firearm and ammunition. Code § 18.2-308.2 does not

separately penalize the appellant’s possession of firearms and ammunition at the same time in the

shed.7

         The Commonwealth stresses that the appellant’s 30-30 caliber ammunition could not be

used in either of his firearms that he kept with it in the shed and that as a result the use of that

ammunition would necessarily occur at a different time and place from the guns with which it

was stored. However, Code § 18.2-308.2 addresses only possession of the prohibited items to

sustain a conviction, not their actual use. The fact that some of the ammunition in the appellant’s

possession did not pair with the firearms found with it does not justify separate convictions for

simultaneous possession under the statute in question.

         We hold that the appellant should have been subject to only one punishment under Code

§ 18.2-308.2 for the firearms and ammunition which he stored in the shed. See generally

Dunford, 148 F.3d at 389-99 (holding that ammunition stored with firearms supported only one

conviction of illegal possession of “any firearm or ammunition”). Consequently, we reverse and

remand in part to the trial court.




         7
          This holding is consistent with the general agreement across jurisdictions that a
legislative proscription against possession by a convicted felon of “any firearm or ammunition”
does not impose multiple punishments for simultaneous possession of a firearm and ammunition.
See, e.g., United States v. Meza, 701 F.3d 411, 431 (5th Cir. 2012); United States v. Jones, 601
F.3d 1247, 1259 (11th Cir. 2010); United States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006)
(en banc) (per curiam); Clark, 184 F.3d at 872; Dunford, 148 F.3d at 390; United States v. Keen,
104 F.3d 1111, 1119-20 (9th Cir. 1996); State v. Auwae, 968 P.2d 1070, 1081 (Haw. Ct. App.
1998), overruled in part on other grounds, State v. Jenkins, 997 P.2d 13, 38 (Haw. 2000).
Compare Brown v. State, 219 So.3d 866, 867 (Fla. Dist. Ct. App. 2017) (per curiam), with
Commonwealth v. Gaskins, 727 N.E.2d 1215, 1216 (Mass. App. Ct. 2000).
                                                - 11 -
                                          III. CONCLUSION

        For the foregoing reasons, we hold that the convictions and sentences for transportation

of a firearm, in violation of five different protective orders, did not violate double jeopardy, and

we affirm that portion of the trial court’s judgment. However, we hold that the trial court erred

in imposing two sentences under Code § 18.2-308.2 for simultaneous possession of a firearm and

ammunition. Accordingly, we remand this case to the trial court to allow the Commonwealth to

elect one conviction and sentence for the appellant’s violation of Code § 18.2-308.2. See

Andrews v. Commonwealth, 280 Va. 231, 288 (2010) (“In a typical case where a defendant has

been subject to impermissible multiple punishments, “the only remedy consistent with [the

legislature’s] intent is for the [trial court], where the sentencing responsibility resides, . . . to

vacate one of the underlying convictions.” (first and second alterations in original) (quoting Ball

v. United States, 470 U.S. 856, 864 (1985))); cf. Gregg, 295 Va. at 301 (holding that the

Commonwealth must elect between two sentences then, following election, requiring the trial

court to vacate the other sentence). Thereafter, the court shall vacate the other conviction and

sentence under that statute. See Gregg, 295 Va. at 301.

                                                 Affirmed in part, and reversed and remanded in part.




                                                  - 12 -
Bumgardner, R.J., concurring, in part, and dissenting, in part.

       I would reverse on both issues. I disagree with the result caused by affirming five

convictions for transporting a firearm while subject to five protective orders.

       Code § 18.2-308.1:4 (transportation of a firearm by persons subject to protective orders)

and Code § 18.2-308.2 (possession of firearms by convicted felons) have the same purpose.

They proscribe access to firearms by persons whose adjudicated conduct indicates they could be

dangerous if armed. The majority interprets Code § 18.2-308.1:4 to permit a separate conviction

for each separate protective order in effect during a single act of buying or transporting a firearm.

However, Code § 18.2-308.2 would support only one conviction for possession or transporting a

firearm by a felon regardless of the number of felony convictions incurred.

       Nothing in the evolution and expansion of this portion of Chapter 7, Title 18.2 suggests

the legislature intended to create such an inconsistent result: separate protective orders create

separate offenses for a single act of buying or transporting; separate felony convictions do not

create separate offenses for a single act of possessing or transporting.

       The gravamen of both offenses is the same: access to firearms by dangerous persons.

The number of crimes committed by acts of possession or transportation should not depend on

whether the forbidden status is defined by a protective order or a felony conviction.




                                               - 13 -
