                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Overton
Argued at Norfolk, Virginia


TROY L. PARHAM
                                           MEMORANDUM OPINION * BY
v.   Record No. 2876-95-2                JUDGE JAMES W. BENTON, JR.
                                              DECEMBER 3, 1996
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF SUSSEX COUNTY
                      Robert G. O'Hara, Jr., Judge
           Connie Louise Edwards for appellant.

           Michael T. Judge, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      The trial judge convicted Troy L. Parham, a previously

convicted felon, of possessing a firearm in violation of Code

§ 18.2-308.2.    Parham contends that the conviction was barred by

the Ex Post Facto Clause, the Due Process Clause, and Code

§ 1-16.   We disagree and affirm the conviction.

                                  I.

      The undisputed evidence proved that in April 1995,

Lieutenant Raymond R. Bell of the Sussex County Sheriff's Office

received a shotgun from Frank Owen.    Owen testified that he

purchased the shotgun from Parham in November 1994.

      The evidence further proved that Parham was convicted in

1988 of three felonies -- breaking and entering with intent to

commit assault, felonious assault, and breaking and entering with
      *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
intent to commit larceny.     In 1988, when Parham was convicted of

those felonies, Code § 18.2-308.2 barred individuals who had been

convicted of specific enumerated felonies from possessing

firearms. 1    None of Parham's felonies were among those specified

in the statute.     In 1989, Code § 18.2-308.2 was amended to

prohibit any felon from possessing a firearm. 2
     1
      In pertinent part, the statute read as follows in 1988:

              It shall be unlawful for any person who has
              been convicted of a Class 1, 2, or 3 felony,
              rape or robbery, or a felony involving the
              use of a firearm under the laws of this
              Commonwealth, or any other state, the
              District of Columbia, the United States or
              any territory thereof, to knowingly and
              intentionally possess or transport any
              pistol, revolver or other handgun.
     2
      In pertinent part, the statute as amended provides as
follows:

              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
              state, the District of Columbia, the United
              States or any territory thereof, 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
              § 18.2-308 A. A violation of this section
              shall be punishable as a Class 6 felony. Any
              firearm or any concealed weapon possessed,
              transported or carried in violation of this
              section shall be forfeited to the
              Commonwealth and disposed of as provided in
                § 18.2-310.



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     The trial judge rejected Parham's arguments that the statute

in effect in 1994 could not be applied to Parham.      Finding that

Parham possessed the shotgun in 1994 and that Parham was a

convicted felon when he possessed the firearm, the judge

convicted Parham of violating Code § 18.2-308.2 and sentenced him

to one year in prison.

                                  II.

     The principle is well settled "that any statute . . . which

makes more burdensome the punishment for a crime, after its

commission, . . . is prohibited as ex post facto."          Beazell v.

Ohio, 269 U.S. 167, 169-70 (1925).       Simply put, "[l]egislatures

may not retroactively alter the definition of crimes or increase

the punishment for criminal acts."       Collins v. Youngblood, 497

U.S. 37, 43 (1990)).

     Parham contends that the statute's ban on the possession of

a firearm increases the punishment for his past criminal act.            We

disagree.   This Court has previously held that the purpose of

Code § 18.2-308.2 is not to punish, but rather "to interdict the

availability and use of firearms by persons previously convicted

of felony offenses."     Mayhew v. Commonwealth, 20 Va. App. 484,

490-91, 458 S.E.2d 305, 308 (1995).      The statute was enacted to

reduce a threat of harm to the public.       See Jones v.

Commonwealth, 16 Va. App. 354, 357-58, 429 S.E.2d 615, 617, aff'd

on reh'g en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993).

Therefore, we hold that the statute as amended in 1989 did not



                                 - 3 -
increase the punishment for Parham's earlier conviction.

     Moreover, the statute is not retrospective.      Parham

mistakenly asserts that the statute was based only on his status

as a convicted felon.    The statute, by its explicit terms, is not

so narrow.    It proscribes a felon's act of possessing a firearm,

i.e., conduct that is distinct from a felon's status.

     Furthermore, the statute became effective in 1989, and

Parham violated the law when he possessed the firearm in 1994.

Thus, the statute was not applied as a "new punitive measure to a

crime already consummated" prior to the effective date of the

statute.     Lindsey v. Washington, 301 U.S. 397, 401 (1937).   As we

ruled in Dodson v. Commonwealth,          Va. App.   ,     S.E.2d

(1996), "[n]o ex post facto violation could have occurred . . .

because 'the crime of being a felon in possession of a firearm

was not committed until after the effective date of the statute

under which [Parham] was convicted.'"       Id. at   ,     S.E.2d at

         (citation omitted).   Accordingly, we hold that Parham's

conviction did not result from a retrospective application of

Code § 18.2-308.2 and, therefore, could not have violated the Ex
Post Facto Clause.

     Parham next contends that his conviction violated the Due

Process Clause.    Parham argues that when he committed the

felonies in 1988, he lacked notice that by committing felonies he

would lose his right to possess a firearm.      That argument lacks

merit.




                                  - 4 -
     "Pursuant to the state police power, the legislature may

'restrict personal and property rights in the interest of public

health, public safety, and for the promotion of the general

welfare.'"   Rainey v. City of Norfolk, 14 Va. App. 968, 973, 421

S.E.2d 210, 213 (1992) (quoting Alford v. City of Newport News,

220 Va. 584, 585-86, 260 S.E.2d 241, 242-43 (1979)).   The

legislature must use means that are reasonably related to the

stated purpose.   See Alford, 220 Va. at 586, 260 S.E.2d at 243.

Because "lessons of common experience [reveal] that possession of

firearms by felons presents a high risk of harm to others,"
Mayhew, 20 Va. App. at 491, 458 S.E.2d at 308, we hold that

barring felons from possessing firearms is reasonably related to

the goal of protecting the public from harm.   Moreover, Parham's

contention that the statute violates his Second Amendment right

to bear arms is also without merit.    See United States v.

Johnson, 497 F.2d 548, 550 (4th Cir. 1974).    Therefore, Code

§ 18.2-308.2 was a valid exercise of the state police power and

Parham's conviction does not violate the Due Process Clause.

     Parham also argues that his conviction violated Code § 1-16.

That statute states as follows:
         No new law shall be construed to repeal a
         former law, as to any offense committed
         against the former law, or as to any act
         done, any penalty, forfeiture, or punishment
         incurred, or any right accrued, or claim
         arising under the former law, or in any way
         whatever to affect any such offense or act so
         committed or done, or any penalty,
         forfeiture, or punishment so incurred, or any
         right accrued, or claim arising before the
         new law takes effect; save only that the


                               - 5 -
          proceedings thereafter had shall conform, so
          far as practicable, to the laws in force at
          the time of such proceedings; and if any
          penalty, forfeiture, or punishment be
          mitigated by any provision of the new law,
          such provision may, with the consent of the
          party affected, be applied to any judgment
          pronounced after the new law takes effect.


     As this Court recently stated, "'[t]he general principle

that statutes should be given a prospective rather than a

retrospective construction has been given statutory approval in

Code § 1-16.'"    Collins v. Department of Alcoholic Bev. Control,

21 Va. App. 671, 677-78, 467 S.E.2d 279, 282 (citation omitted),
aff'd on reh'g en banc, 22 Va. App. 625, 472 S.E.2d 287 (1996).

Because Code § 18.2-308.2 was applied prospectively, it did not

affect any right that had previously vested in Parham or any

punishment imposed upon Parham as a result of his prior

conviction.   Thus, the evidence failed to establish a violation

of Code § 1-16.

     For these reasons, we affirm the conviction.

                                                    Affirmed.




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