                   COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz * , Elder and Fitzpatrick
Argued at Salem, Virginia

TIMOTHY LOUIS FIELDS

v.   Record No.   0437-94-3              MEMORANDUM OPINION** BY
                                      JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA                     AUGUST 22, 1995

           FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
                 Charles B. Flannagan, II, Judge

     Joseph F. Dene (Dene & Dene, on brief), for appellant.

     Marla Lynn Graff, Assistant Attorney General (James S.
     Gilmore, III, Attorney General, on brief), for appellee.


     Timothy Louis Fields (Fields) appeals his conviction for

receiving stolen firearms pursuant to Code § 18.2-108.1.    Fields

contends that the term "firearm" as used in the statute requires

the Commonwealth to prove that the object in question is an

actual firearm and that the Commonwealth failed to adduce

evidence that the objects alleged to be in his possession were,

in fact, actual firearms.     For the following reasons, we affirm

the conviction.

     Fields and two other men were employed by Rainbow Homes to

set-up a mobile home for Ricky Coleman.    During this time,

Coleman began placing personal belongings inside the home.

Coleman's wife later discovered that two of her husband's rifles,

a .44 magnum and a .22 magnum, were missing.    At trial, Coleman
     *
      Justice Koontz prepared and the Court adopted the opinion
in this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     **
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
identified the two rifles from photographs.    Each of the two

other workmen testified to seeing the other take rifles and give

them to Fields, who took the rifles to his home.    Other witnesses

testified to seeing one or both of the rifles in Fields'

possession and to hearing him discuss selling or trading the

rifles.   Neither rifle was presented as physical evidence nor was

testimony received that either rifle had been or otherwise was an

actual firearm.
     Code § 18.2-108.1(2) provides that "[a]ny person who buys or

receives a firearm from another person or aids in concealing a

firearm, knowing that the firearm was stolen, shall be guilty of

a Class 6 felony and may be proceeded against although the

principal offender is not convicted."    A "firearm" has

traditionally been defined as any weapon "from which a shot is

discharged by gunpowder."     Webster's Third New International

Dictionary 854 (1981).   This term, however, has also been

assigned various meanings in other sections of Title 18.2.    In

construing penal statutes, "word[s] must be construed in a manner

that gives full effect to the legislative intent embodied in the

entire statutory enactment."     Jones v. Commonwealth, 16 Va. App.

354, 356, 429 S.E.2d 615, 616 (1993), aff'd en banc, 17 Va. App.

233, 436 S.E.2d 192 (1993).    Moreover, as Code § 18.2-108.1 is

penal, it must be strictly construed against the Commonwealth.

Johnson v. Commonwealth, 211 Va. 815, 819, 180 S.E.2d 661, 664

(1971); Jones, 16 Va. App. at 356, 429 S.E.2d at 616.
     The purpose and policy of Code § 18.2-108.1 is to prohibit

                                  -2-
the possession of a stolen firearm.   This statute, in effect, is

designed to deter the potential physical harm that could emanate

from the acquisition of a weapon by nefarious means.   When a

statute is designed to deter possession of a stolen firearm in

order to reduce the threat of harm to the public, then "a

narrower, more traditional definition of 'firearm' is required."

 Jones, 16 Va. App. at 357-58, 429 S.E.2d at 616-17 (holding that

Code § 18.2-308.2 which prohibits the possession of a firearm

only pertains to actual firearms and not BB guns); see also
Timmons v. Commonwealth, 15 Va. App. 196, 199, 421 S.E.2d 894,

896 (1992)(holding that a broad definition of a firearm in a

possession of a firearm statute is improper).

     In Jones, we contrasted this narrow definition with uses of

the same term in other statutes designed to deter a broader range

of conduct involving the use of firearms.   Jones, 16 Va. App. at

356-57, 429 S.E.2d at 616; see also Holloman v. Commonwealth, 221

Va. 196, 198, 269 S.E.2d 356, 357 (1980)("firearm" includes BB

guns because the purpose of the statute is to prevent fear of

physical harm); Code § 18.2-282 ("firearm" expressly includes BB

guns).   We hold that the rationale applied in Jones to the
offense defined in Code § 18.2-308.2 controls here.    Accordingly,

the term firearm as used in Code § 18.2-108.1 refers to actual

firearms only. 1
     1
      We do not address here the questions of whether an actual
firearm must be demonstrably functional and known to be such by
the possessor at the given instance of its criminally prohibited
possession under a statute applying the narrow definition of the
term. Jones and its progeny are limited to the specific
                                -3-
     Fields further contends that, because the narrower

definition of the term "firearm" applies to Code § 18.2-108.1,

the Commonwealth's evidence here failed to prove that he

possessed actual firearms.   We disagree.   Although the

Commonwealth may prove that the object possessed in violation of

Code § 18.2-108.1 is an actual firearm by presenting direct

forensic evidence of its nature, as with any other element of a

crime, the Commonwealth may also assert its proof by

circumstantial evidence.
     In a case based upon circumstantial evidence, the

Commonwealth must exclude every reasonable hypothesis of

innocence.   Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373

S.E.2d 328, 338 (1988), cert. denied, 496 U.S. 911 (1990).

Whether the Commonwealth relies upon either direct or

circumstantial evidence, it is not required to disprove every

conceivable possibility of innocence, but is, instead, required

only to establish guilt of the accused to the exclusion of a

reasonable doubt.   Id.; see also Bridgeman v. Commonwealth, 3 Va.

App. 523, 526-27, 351 S.E.2d 598, 600 (1986).   The Commonwealth

need only exclude reasonable hypotheses of innocence that flow

from the evidence, not those that spring from the imagination of

the defendant.   Cook v. Commonwealth, 226 Va. 427, 433, 309

S.E.2d 325, 329 (1983); Fordham v. Commonwealth, 13 Va. App. 235,

distinction between those objects which merely give the
appearance of being firearms, but are not capable of being such,
and those objects manufactured for the purpose of being firearms.


                                -4-
239, 409 S.E.2d 829, 831 (1991).

     As applied to Code § 18.2-108.1, the Commonwealth initially

satisfied its burden of proof by presenting circumstantial

evidence that the objects possessed were actual firearms.      The

Commonwealth relied on the trier of fact's common experience to

infer that the objects depicted in photographs and referred to in

testimony as "rifles," "magnums," "22's," and ".44's," were

actual firearms and not merely imitation representations of such.

Fields contends that these objects might have been "drill team

rifles" or otherwise some form of decorative or ornamental object

not capable of being a "firearm."       That assertion, however, does

not flow from the evidence when it is viewed in the light most

favorable to the Commonwealth.     Traverso v. Commonwealth, 6 Va.

App. 172, 176, 366 S.E.2d 719, 721 (1988).      "Hypotheses not

flowing from the evidence must be rejected."       Fordham, 13 Va.

App. at 239, 409 S.E.2d at 831.

     For these reasons, we affirm Fields' conviction.
                                                       Affirmed.




                                  -5-
