                               COURT OF APPEALS OF VIRGINIA


Present: Judges Beales, Powell and Alston
Argued at Richmond, Virginia


DAVID CLINTON GREEN
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0771-09-2                                  JUDGE ROSSIE D. ALSTON, JR.
                                                                 DECEMBER 22, 2009
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                  Burnett Miller, III, Judge

                 Russell N. Allen for appellant.

                 Eugene Murphy, Senior Assistant Attorney General (William C.
                 Mims, Attorney General, on brief), for appellee.


       David Clinton Green (appellant) appeals his conviction of possession of a concealed

weapon by a convicted felon, in violation of Code § 18.2-308.2(A). He argues that the

Commonwealth failed to produce sufficient evidence to convict him of the charge. We hold that

the evidence, viewed in the light most favorable to the Commonwealth, does not establish that

the knife appellant possessed was one of the items proscribed by Code § 18.2-308(A).

Therefore, we reverse appellant’s conviction for possession of a concealed weapon by a

convicted felon and dismiss the indictment.

                                         I. BACKGROUND

       In determining the sufficiency of the evidence, we consider the evidence in the light most

favorable to the Commonwealth, as the prevailing party below, and grant to it all reasonable

inferences. Morris v. Commonwealth, 272 Va. 732, 734, 636 S.E.2d 436, 437 (2006). So


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
viewed, the evidence proved that on June 19, 2008, a police officer approached appellant on the

street, noting that appellant matched the description of a person with outstanding warrants. The

officer obtained consent to frisk appellant for weapons. During the pat down, appellant fled.

The officer ran after appellant, hit him with his baton, and forced appellant to the ground. A

brief struggle ensued, and appellant was eventually secured and arrested. In a search incident to

arrest, the officer found a knife, most closely resembling a kitchen steak knife, in appellant’s

waistband. Appellant told the officer that he had the knife for protection. Appellant was charged

with obstruction of justice and possession of a concealed weapon by a convicted felon. 1

       At trial, the Commonwealth introduced the knife and a certified copy of appellant’s prior

felony conviction into evidence. 2 Appellant made a motion to strike, arguing that the knife

appeared consistent with a culinary or steak knife and, therefore, was not a weapon prohibited by

Code § 18.2-308. 3 The trial court denied appellant’s motion, finding that although the knife may


       1
           Appellant did not challenge his conviction of obstruction of justice.
       2
         The Commonwealth’s exhibit shows the knife measures approximately ten inches, with
a five and three-quarters inch blade and a wooden handle. The knife has one sharp edge and one
blunt edge.
       3
           Code § 18.2-308(A) provides in relevant part:

                 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 by action of an explosion
                 of any combustible material; (ii) any dirk, bowie knife,
                 switchblade knife, ballistic knife, machete, razor, slingshot, spring
                 stick, metal knucks, or blackjack; (iii) any flailing instrument
                 consisting of two or more rigid parts connected in such a manner
                 as to allow them to swing freely, which may be known as a nun
                 chahka, nun chuck, nunchaku, shuriken, or fighting chain; (iv) any
                 disc, of whatever configuration, having at least two points or
                 pointed blades which is designed to be thrown or propelled and
                 which may be known as a throwing star or oriental dart; or (v) any
                 weapon of like kind as those enumerated in this subsection, he
                 shall be guilty of a Class 1 misdemeanor.

                                                 -2-
not be “one designed for weaponry,” appellant possessed the knife for self-defense. During the

presentation of the defense’s evidence, appellant testified that he was using the knife to shuck

clams and denied making any statement that he used the knife for protection.

       At the close of all the evidence, appellant renewed his motion to strike. The trial court,

again denying appellant’s motion, stated that while the knife was “not much of a kitchen knife,

much of a dirk, or much of a bowie knife, . . . it does appear to be an item of . . . like kind to a

bowie knife or a dirk, even though it has one [sharp] edge.” Given appellant’s statement that he

used the knife for protection, the trial court found the knife met the definition of a weapon of like

kind, proscribed by Code § 18.2-308, and convicted appellant of possession of a concealed

weapon. This appeal followed.

                                           II. ANALYSIS

       The most famous scene in the movie Crocodile Dundee occurs when the two stars of the

movie, Mick and Sue, are menaced by a trio of miscreants, one of whom brandishes a

switchblade. Sue tells Mick to give the thief his wallet, because he has a knife. Mick laughs and

says, “That’s not a knife.” Mick then draws his much larger bowie knife and slashes the

would-be mugger’s jacket with the words: “That’s a knife!” While Mick’s analysis—you know

a weapon when you see one—may be more intuitive, we are bound by a substantive statutory

framework in our determination of what consitutes a weapon. 4

       Virginia law prohibits a felon from “knowingly and intentionally carry[ing] about his

person, hidden from common observation, any weapon described in subsection A of § 18.2-308.”

Code § 18.2-308.2(A). Code § 18.2-308(A)(ii) enumerates several weapons, including, “any

dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, metal



       4
        In fact, Mick’s intuition would be incorrect under our analysis. The knife-wielder
possessed a switchblade, an item enumerated in and proscribed by Code § 18.2-308(A)(ii).
                                              -3-
knucks, or blackjack.” This section also prohibits concealing “any weapon of like kind as those

enumerated.” Code § 18.2-308(A)(v). In support of his claim that the evidence was insufficient

to convict him of possession of a concealed weapon by a convicted felon, appellant argues that

the evidence failed to prove that his knife was a weapon within the scope of Code

§ 18.2-308.2(A). We agree with appellant that the knife he possessed was not a weapon.

       To convict appellant under Code § 18.2-308.2(A), the Commonwealth must prove, inter

alia, that the knife appellant possessed is one of the statutorily proscribed items or a “weapon of

like kind.” Code § 18.2-308.2(A)(v); see also Thompson v. Commonwealth, 277 Va. 280, 287,

673 S.E.2d 469, 472 (2009); McMillan v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d

___, ___ (Dec. 22, 2009) (en banc). When reviewing whether the evidence is sufficient, “we

presume the judgment of the trial court to be correct and will not set it aside unless it is plainly

wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570

S.E.2d 875, 876-77 (2002) (internal quotations omitted). “The construction of a statute,

however, is a question of law reviewed de novo on appeal.” Thompson, 277 Va. at 287, 673

S.E.2d at 472 (citing Farrakhan v. Commonwealth, 273 Va. 177, 180, 639 S.E.2d 277, 229

(2007)).

       In Farrakhan, 273 Va. at 182, 639 S.E.2d at 230, our Supreme Court provided an analytic

framework for evaluating whether an item falls within the purview of this statute. The initial

inquiry is whether the bladed item is one enumerated in the statute. Id. If it is, the evidence is

sufficient to convict and the inquiry ends. Id. However, if the bladed item is not one of the

enumerated items, then the court must determine whether the item is a weapon. Id.; Harris v.

Commonwealth, 274 Va. 409, 415, 650 S.E.2d 89, 91-92 (2007). The analysis ends here if the

bladed item is not a weapon. Farrakhan, 273 Va. at 183, 639 S.E.2d at 230; Harris, 274 Va. at




                                                 -4-
415, 650 S.E.2d at 92. Only if the item is a weapon, does “the analysis continue[] to determine if

the item possesses such similar characteristics to the enumerated items in the Code

§ 18.2-308(A) such that its concealment is prohibited.” Farrakhan, 273 Va. at 182, 639 S.E.2d at

230.

       On appeal, the Commonwealth does not argue, and the trial court did not find, that the

knife is one of the enumerated items in the statute. Thus, our inquiry focuses on whether the

knife is a weapon, such that it could be a weapon of like kind. For an item ‘“to be a “weapon”

within the definition of “weapon of like kind,” the item must be designed for fighting purposes

or commonly understood to be a “weapon.”’” Harris, 274 Va. at 415, 650 S.E.2d at 92 (quoting

Farrakhan, 273 Va. at 182, 639 S.E.2d at 230).

       Our Supreme Court elaborated on this step of the analysis in Thompson, 277 Va. at

288-89, 673 S.E.2d at 472-73. In that case, a police officer testified that knives like the butterfly

knife at issue are “designed for a one-handed operation with a flip of the wrist,” and “are very

dangerous for police officers, due to the fact that they are easily concealed.” Id. at 285, 673

S.E.2d at 470. Further, the officer retrieved “‘this exact type of knife’ . . . from gang members

on several occasions.” Id. The Court concluded that there was sufficient evidence in the record

to prove that

                Thompson’s butterfly knife is a “weapon” because the evidence at
                trial concerning the knife’s physical characteristics and method of
                operation established that it is “designed for fighting purposes” and
                is “commonly understood to be a ‘weapon.’” Farrakhan, 273 Va.
                at 182, 639 S.E.2d at 230; accord Harris, 274 Va. at 415, 650
                S.E.2d at 92.

Id. at 288, 673 S.E.2d at 472-73.

       This Court, relying on Thompson, very recently reiterated that the trial court must

provide a basis for its determination that an item is a weapon, before it can determine that it is a

weapon of like kind. McMillan, ___ Va. App. at ___, ___ S.E.2d at ___. In McMillan, the
                                                -5-
Court held that a knife, described by the officer testifying at trial as a scuba knife, was not a

weapon. “Unlike the police officer in Thompson, 277 Va. at 285, 673 S.E.2d at 470, the officer

in this case did not testify about the knife’s method of operation, the purpose for which it was

designed, or its commonly understood uses.” McMillan, ___ Va. App. at ___, ___ S.E.2d at ___.

Finding no evidence to support the determination that the knife was a weapon, this Court held

that the knife could not be a weapon of like kind, and reversed McMillan’s conviction.

       As in McMillan, the officer in this case did not testify about the knife’s method of

operation, the purpose for which it was designed, or the uses for which it is commonly

understood. In fact, there was no testimony whatsoever as to the knife’s characteristics. The

Commonwealth’s only evidence was the knife itself and the officer’s testimony that appellant

said he used the knife for protection. The record is devoid of any facts on which one could find

that the knife is either designed for fighting purposes or commonly understood to be a weapon.

On the contrary, the record shows that the trial judge assumed the item was “not a knife designed

for weaponry.”

       The officer’s statement that appellant carried the knife for protection does not change the

physical characteristics of the knife appellant possessed or its method of operation such that it

becomes a weapon. See Thompson, 277 Va. at 291, 673 S.E.2d at 474 (stating that “as we

explained in Farrakhan, ‘[s]ubsequent use or circumstances may not be considered in the

definitional analysis of “weapon”’”). “Nor can the purpose for which an individual carries a

knife be dispositive as to whether that knife is either ‘designed for fighting purposes’ or

‘commonly understood’ to be a weapon.” McMillan, ___ Va. App. at ___, ___ S.E.2d at ___.

       Though the knife in question could be a dangerous instrument in the hands of a person

with criminal intent, the issue before this Court is “what is proscribed by statute as unlawful not

simply what may be dangerous.” Farrakhan, 273 Va. at 183, 639 S.E.2d at 230. We strictly

                                                 -6-
construe penal statutes against the Commonwealth. Harris, 274 Va. at 414, 650 S.E.2d at 91

(citing Farrakhan, 273 Va. at 182, 639 S.E.2d at 230). We conclude that the evidence before us

does not establish that appellant’s knife is designed for fighting purposes, nor is it commonly

understood to be a weapon. Because the parties concede that appellant’s knife is not enumerated

in the statute and we conclude that it is not a weapon, we need not address whether it is a weapon

of like kind.

                                       III. CONCLUSION

        For these reasons, we reverse and vacate appellant’s conviction for possession of a

concealed weapon by a convicted felon, in violation of Code § 18.2-308.2(A).

                                                                          Reversed and dismissed.




                                               -7-
