                   COURT OF APPEALS OF VIRGINIA


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


JOHN LEROY BOND
                                        MEMORANDUM OPINION * BY
v.        Record No. 2476-95-1         JUDGE NELSON T. OVERTON
                                          DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    E. Everett Bagnell, Judge
          James L. McLemore, III, for appellant.

          Margaret Ann B. Walker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     John Leroy Bond was convicted of possession of a firearm

after having been convicted of a felony.   We hold that the

evidence is sufficient to support the conviction, and we affirm.

     "A conviction for knowingly and intentionally possessing a

firearm after having been convicted of a felony, see Code

§ 18.2-308.2, requires proof beyond a reasonable doubt of either

actual or constructive possession of the firearm."     Hancock v.

Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 139 (1995);

see Blake v. Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219,

220 (1993).   To support a conviction based on constructive

possession, the Commonwealth must prove that the defendant "was

aware of both the presence and character of the [item] and that

it was subject to his dominion and control."   Hancock, 21 Va.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
App. at 469, 465 S.E.2d at 140 (quoting Powers v. Commonwealth,

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)) (alteration in

original).

     An exception from this strict rule exists in certain

situations.   Almost one hundred and thirty years ago, the United

States Supreme Court in United States v. Kirby, 74 U.S. 482

(1868), discussed the need to distinguish circumstances in which

apparent criminal conduct would be justifiable and declared to be

lawful because of necessity.
             The common sense of man approves the
          judgment mentioned by Puffendorf, that the
          Bolognian law which enacted, "that whoever
          drew blood in the streets should be punished
          with the utmost severity," did not extend to
          the surgeon who opened the vein of a person
          that fell down in the street in a fit. The
          same common sense accepts the ruling, cited
          by Plowden, that the statute of 1st Edward
          II, which enacts that a prisoner who breaks
          prison shall be guilty of felony, does not
          extend to a prisoner who breaks out when the
          prison is on fire - "for he is not to be
          hanged because he would not stay to be
          burnt." And we think that a like common
          sense will sanction the ruling we make, that
          the act of Congress which punishes the
          obstruction or retarding of the passage of
          the mail, or of its carrier, does not apply
          to a case of temporary detention of the mail
          caused by the arrest of the carrier upon an
          indictment for murder.

Id. at 487.

     In analogous reasoning, this Court has recognized that

"'[f]or reasons of social policy, it is better that the

defendant, faced with a choice of evils, choose to do the lesser

evil (violate the criminal law) in order to avoid the greater



                               - 2 -
evil threatened by the other person.'"     Daung Sam v.

Commonwealth, 13 Va. App. 312, 323, 411 S.E.2d 832, 838 (1991)

(citation omitted).

     Initially, Bond's actions may have placed his possession of

the firearm into this exception.    The evidence proved that Willie

Deloatch engaged in a fight with another man.    Later, when highly

intoxicated, Deloatch approached the man and a group of people on

a street.   Deloatch was holding a gun.   A woman in the group, who

knew that Bond was Deloatch's friend, went to Bond's grocery

store and asked Bond if he would intervene with Deloatch to stop

the incident.    Bond, who had been friends with Deloatch for

thirty years, went to confront Deloatch.
     When Bond arrived, Deloatch had fired the gun three times.

Deloatch was intoxicated, had a swollen eye, and was angrily

threatening the man with the gun.   Bond spoke with Deloatch and

attempted to calm him.   Bond testified that Deloatch's mother had

recently died and that Deloatch was upset, crying, and uncaring

about his own conduct.   Deloatch announced that he intended to

shoot the man.   After Bond reasoned with Deloatch, Deloatch gave

him the gun.

     Bond coaxed Deloatch into his car and drove with Deloatch to

Gwendolyn Golden's residence.   Golden was Bond's romantic friend

and a person whom Deloatch respected.     Bond explained to Golden

what had occurred and asked to leave the gun with her until

Deloatch was sober.   She agreed.   Bond placed the gun on top of a



                                - 3 -
high cabinet in Golden's kitchen and left with Deloatch.

     Two years later, when the police were searching Golden's

residence in connection with another matter, a police officer

found the gun atop the cabinet.    The gun had dust on it and had

been undisturbed.    The officer testified that the accumulation of

dust indicated to him that the gun had been on the cabinet for a

long time.    Golden testified that she had forgotten about the gun

until the police found it.
     After the discovery of the gun, another police officer went

to Bond's store and questioned Bond about the gun.    Bond

testified that he then remembered the gun and explained the

incident involving Deloatch.    The officer arrested Bond for

possession of a firearm after having been convicted of a felony.

After his arrest, Bond gave the police a written statement in

which he stated that he had taken the gun from Deloatch to "keep

a person from getting hurt" and that he placed the gun atop a

cabinet over the sink at Golden's residence.

     The trial judge ruled that Bond's initial, actual possession

was justifiable.    That ruling was based on the following

findings:
             Mr. Bond, in this case I would agree with
             what your lawyer said that the Court
             certainly would not find you guilty of
             possessing a firearm under the circumstances
             that you took it. No question you took it
             under circumstances where you were trying to
             prevent someone from getting hurt and
             rightfully so. You did the right thing, no
             question. I don't think no Judge, nor no
             jury in the world would convict you of
             possessing a firearm under those



                                 - 4 -
             circumstances because you didn't really
             intentionally possess it at that time. The
             problem arises after that.


     The trial judge then found Bond guilty of constructive

possession of the gun because the gun remained in Golden's

residence.    The judge stated the following rationale for the

conviction:
          Now, the code does not allow a convicted
          felon to hold a firearm for someone else as
          an agent, fiduciary or any capacity. A
          convicted felon is not allowed to hold a gun
          for someone, other than some emergency
          purposes. And obviously the emergency ceased
          to exist once the cooling period was over and
          at some point even maybe you could say well,
          you should have kept it a day and let him
          sober up. Maybe so, but at some point that
          ended, that emergency situation ended.
                There's no question in the Court's mind,
             Mr. Bond, under the law you had constructive
             possession of this weapon. You put it where
             it was found. Mr. Bond had access, no
             question, to the home. There's no question
             he came and went from that home. I agree
             it's not your home, you don't live there, but
             Mr. Bond did come and go. That's what the
             testimony is and sometimes he spent the night
             there.


     We agree with the trial court's conclusions.     Bond admitted

at trial that at one time he was aware of both the presence and

character of the firearm.    Indeed, he personally placed it in its

location because he knew it was a dangerous weapon.    Bond argues

on appeal that he later lost awareness of the presence of the gun

by forgetting it.    We cannot accept the proposition that one may

lose possession or dispossess oneself of property by mere

forgetfulness.    Creating such a principle would lead to absurd



                                 - 5 -
results, especially in cases of controlled substances or stolen

property. 1

     The evidence presented at trial also sufficiently proved the

second element:   dominion and control over the firearm.   Though

not in Bond's residence, the gun was in an apartment that Bond

frequented on a regular basis and often stayed overnight.   Bond

admitted placing the firearm there without asking the consent of

the apartment's owner, and when asked by the apartment's owner

what he planned to do with it, he stated that he was going to

hold it until he decided to return it to the gun's owner.   Bond

thereafter had unrestricted access to the firearm.
     The circumstances after the emergency had passed evidence

Bond's dominion and control over the firearm such that, when

combined with Bond's actual knowledge of the presence and

character of the gun, the evidence is sufficient to support a

conviction for possession of a firearm after having been

convicted of a felony.
                                       Affirmed.




     1
      This case is distinguished from Hancock, in which the trial
court found only that the defendant should have known about the
presence of the firearm, a standard lower than the statutorily
prescribed "knowingly and intentionally possess[ing]." Hancock,
21 Va. App. at 469, 465 S.E.2d at 140; see Code § 18.2-308.2.
Here, Bond concedes that he actually knew about the firearm at
one time, and thereafter forgot it.




                               - 6 -
Benton, J., dissenting.

     "A conviction for knowingly and intentionally possessing a

firearm after having been convicted of a felony, see Code

§ 18.2-308.2, requires proof beyond a reasonable doubt of either

actual or constructive possession of the firearm."   Hancock v.

Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 139 (1995).

Furthermore, almost one hundred and thirty years ago, the United

States Supreme Court in United States v. Kirby, 74 U.S. 482

(1868), discussed the need to distinguish circumstances in which

apparent criminal conduct would be justifiable and declared to be

lawful because of necessity.
             The common sense of man approves the
          judgment mentioned by Puffendorf, that the
          Bolognian law which enacted, "that whoever
          drew blood in the streets should be punished
          with the utmost severity," did not extend to
          the surgeon who opened the vein of a person
          that fell down in the street in a fit. The
          same common sense accepts the ruling, cited
          by Plowden, that the statute of 1st Edward
          II, which enacts that a prisoner who breaks
          prison shall be guilty of felony, does not
          extend to a prisoner who breaks out when the
          prison is on fire - "for he is not to be
          hanged because he would not stay to be
          burnt." And we think that a like common
          sense will sanction the ruling we make, that
          the act of Congress which punishes the
          obstruction or retarding of the passage of
          the mail, or of its carrier, does not apply
          to a case of temporary detention of the mail
          caused by the arrest of the carrier upon an
          indictment for murder.


Id. at 487.

     In analogous reasoning, this Court has recognized that

"'[f]or reasons of social policy, it is better that the


                              - 7 -
defendant, faced with a choice of evils, choose to do the lesser

evil (violate the criminal law) in order to avoid the greater

evil threatened by the other person.'"    Daung Sam v.

Commonwealth, 13 Va. App. 312, 323, 411 S.E.2d 832, 838 (1991)

(citation omitted).   The evidence in this appeal proved that John

Bond's conduct was justifiable, probably saved another person's

life, and was not criminal.

     The evidence proved that Willie Deloatch engaged in a fight

with another man.    Later, when highly intoxicated, Deloatch

approached the man and a group of people on a street.    Deloatch

was holding a gun.    A woman in the group, who knew that Bond was

Deloatch's friend, went to Bond's grocery store and asked Bond if

he would intervene with Deloatch to stop the incident.   Bond, who

had been friends with Deloatch for thirty years, went to confront

Deloatch.
     When Bond arrived, Deloatch had fired the gun three times.

Deloatch was intoxicated, had a swollen eye, and was angrily

threatening the man with the gun.   Bond spoke with Deloatch and

attempted to calm him.   Bond testified that Deloatch's mother had

recently died and that Deloatch was upset, crying, and uncaring

about his own conduct.   Deloatch announced that he intended to

shoot the man.   After Bond reasoned with Deloatch, Deloatch gave

him the gun.

     Bond then coaxed Deloatch into his car and drove with

Deloatch to Gwendolyn Golden's residence.   Golden was Bond's



                                - 8 -
romantic friend and a person that Deloatch respected.       Bond

explained to Golden what had occurred and asked to leave the gun

with her until Deloatch was sober.       She agreed.   Bond placed the

gun on top of a high cabinet in Golden's kitchen and left with

Deloatch.

     Two years later, when the police were searching Golden's

residence in connection with another matter, a police officer

found the gun atop the cabinet.    The gun had dust on it and had

been undisturbed.    The officer testified that the accumulation of

dust indicated to him that the gun had been on the cabinet for a

long time.    Golden testified that she had forgotten about the gun

until the police found it.
     After the discovery of the gun, another police officer went

to Bond's store and questioned Bond about the gun.       Bond

testified that he then remembered the gun and explained the

incident involving Deloatch.    The officer arrested Bond for

possession of a firearm after having been convicted of a felony.

After his arrest, Bond gave the police a written statement in

which he stated that he had taken the gun from Deloatch to "keep

a person from getting hurt" and that he placed the gun atop a

cabinet over the sink at Golden's residence.

     The trial judge ruled that Bond's initial, actual possession

was justifiable.    That ruling was based on the following

findings:
             Mr. Bond, in this case I would agree with
             what your lawyer said that the Court
             certainly would not find you guilty of



                                 - 9 -
             possessing a firearm under the circumstances
             that you took it. No question you took it
             under circumstances where you were trying to
             prevent someone from getting hurt and
             rightfully so. You did the right thing, no
             question. I don't think . . . [any] Judge,
             . . . [or any] jury in the world would
             convict you of possessing a firearm under
             those circumstances because you didn't really
             intentionally possess it at that time. The
             problem arises after that.


     The trial judge then found Bond guilty of constructive

possession of the gun because the gun remained in Golden's

residence.    The judge stated the following rationale for the

conviction:
          Now, the code does not allow a convicted
          felon to hold a firearm for someone else as
          an agent, fiduciary or any capacity. A
          convicted felon is not allowed to hold a gun
          for someone, other than some emergency
          purposes. And obviously the emergency ceased
          to exist once the cooling period was over and
          at some point even maybe you could say well,
          you should have kept it a day and let him
          sober up. Maybe so, but at some point that
          ended, that emergency situation ended.

                There's no question in the Court's mind,
             Mr. Bond, under the law you had constructive
             possession of this weapon. You put it where
             it was found. Mr. Bond had access, no
             question, to the home. There's no question
             he came and went from that home. I agree
             it's not your home, you don't live there, but
             Mr. Bond did come and go. That's what the
             testimony is and sometimes he spent the night
             there.


That reasoning and the evidence in the record are insufficient to

support the conviction.

     In Hancock, we ruled as follows:
          Liability under Code § 18.2-308.2 requires
          proof that the accused "knowingly and



                                - 10 -
          intentionally possess[ed] . . . any firearm."
           Thus, the Commonwealth must prove a
          defendant's actual knowledge of the firearm.
           The trial judge misunderstood the requisite
          mental state when he ruled that "should have
          known" was sufficient. We can affirm this
          appeal only if the Commonwealth proved beyond
          a reasonable doubt that [the defendant] had
          actual knowledge of the presence of the
          firearm, i.e. "knowingly and intentionally
          possess[ed]" the firearm.


21 Va. App. at 469, 465 S.E.2d at 140 (citations omitted).

     The evidence in this case proved that after Bond defused

Deloatch's anger and gained possession of the gun, he took the

gun to Golden's residence because he believed that Deloatch

respected Golden and, thus, would not seek to obtain it from her

while he was intoxicated.   No evidence proved Bond knowingly or

intentionally retained possession of the gun after he delivered

it to Golden's residence.   Golden testified she had forgotten

that the gun was atop the cabinet.     Bond also testified that he

had forgotten about the gun until the police questioned him about

the gun atop the cabinet.   In addition, the evidence proved that

shortly after the incident Deloatch was incarcerated and likely

was unable to obtain the gun from Golden.
     Indeed, the trial judge clearly accepted as a fact that Bond

had forgotten that the firearm was in Golden's residence.    The

judge stated the following at sentencing:
             Now, I am going to state for the record,
          Mr. Bond, in this case that although the
          Court has found that you are in constructive
          possession of the firearm I think the
          evidence indicates that at least from the
          Commonwealth's own evidence that you had not
          handled this firearm, that what you said


                              - 11 -
             about where you put the firearm is accurate.
              That you put it up there, that you had not
             gone back and forgotten the firearm, that
             type of thing. I think the evidence probably
             does support that.


      Nevertheless, the trial judge reasoned:
              But the firearm was certainly in a place
           where you had access on a regular basis. You
           put it there, you knew where it was, and for
           that reason the Court is required under the
           law to make the finding that it made.


In effect, the trial judge ruled that although Bond had forgotten

that the gun was above the cabinet in Golden's residence, he

should have known the gun was in the residence because he placed

it there two years earlier and later visited Golden in the

residence.    That rationale cannot support the conviction.    See

id.

      Furthermore, proof that Bond was present in Golden's

residence at various times during the two year period did not

negate the undisputed evidence that Bond had forgotten that the

gun was atop the cabinet.    Thus, the trial judge could not

logically have found that Bond "knowingly and intentionally

possess[ed]" the gun.    Code § 18.2-308.2; see also Staples v.
United States, 511 U.S. 600, 623 (1994) (Ginsburg, J.,

concurring) ("'Knowingly possessed' logically means 'possessed

and knew that he possessed.'").

      Bond had no preconceived design to obtain or keep the gun.

He put himself at risk of great injury or death when he disarmed

Deloatch.    Bond's conduct manifested the principle "that the law




                                - 12 -
promotes the achievement of higher values at the expense of lower

ones and that '"sometimes the greater good for society will be

accomplished by violating the literal language of the criminal

law."'"   State v. Crawford, 521 A.2d 1193, 1197 (Md. 1987)

(citation omitted).   Because the evidence proved that Bond forgot

about the gun after he justifiably obtained the gun from Deloatch

and placed it in Golden's residence, the Commonwealth failed to

prove beyond a reasonable doubt that Bond constructively

possessed the gun while it remained undisturbed on the cabinet.




                              - 13 -
