                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia


JAMES JUNIOR FOUNTAIN
                                         MEMORANDUM OPINION * BY
v.   Record No. 0262-01-2               JUDGE ROBERT J. HUMPHREYS
                                               MAY 7, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge

          Andrea S. Lantz, Assistant Public Defender
          (Office of the Public Defender, on brief),
          for appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General, on brief), for appellee.


James Junior Fountain appeals his conviction, after a bench trial,

for possession of a firearm after having been previously convicted

of a felony, in violation of Code § 18.2-308.2. 1   Fountain


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Fountain was charged with concealed possession of "a weapon
designed or intended to propel a missile of any kind," after
having been previously convicted of a felony, in violation of Code
§ 18.2-308.2. Fountain was correctly indicted and arraigned on
this charge. However, both the conviction and sentencing orders
state that Fountain was convicted of being a "felon in possession
of a firearm." The Commonwealth contends in their brief on appeal
that the conviction and sentencing orders demonstrate a clerical
error in this regard; we granted the Commonwealth leave to request
that the trial court consider a motion to correct the orders, nunc
pro tunc, and the trial court entered the orders December 21,
2001, nunc pro tunc, February 15, 2001, correcting the clerical
error. Fountain does not challenge this on appeal and argues on
contends the trial court erred in finding the evidence sufficient

as a matter of law to support the conviction. 2   We disagree and

affirm the conviction.

When the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom.   We should affirm the

judgment unless it appears from the evidence that the judgment is

plainly wrong or without evidence to support it. 3



So viewed, the evidence presented at trial established that on the

evening of September 18, 1998, Officer John McKay, of the

Albemarle Police Department, was patrolling the area of the Milton

Boat Landing when he observed a vehicle parked at the bottom of

the landing, past a sign indicating the area was closed.    McKay

found Fountain and a female inside the car, which he described as

a "small, two seat" 1986 Nissan 300ZX.   McKay informed Fountain

that the area was closed and asked to see his driver's license.


brief only that the weapon was not a "firearm" and that his
conviction for "unlawfully, feloniously, knowingly and
intentionally, after having been convicted of a felony, carrying
on or about his person, hidden from common observation, a weapon
designed or intended to propel a missile of any kind," was in
error.
     2
       Fountain was also tried on one count of possession of
cocaine. However, the trial court acquitted him of this charge.
     3
       Cook v. Commonwealth, 219 Va. 769, 770, 250 S.E.2d 361, 362
(1979).

                               - 2 -
Fountain presented his license to McKay.   After running a "wanted

check" on his license, McKay learned that there was an outstanding

capias for Fountain.   McKay then placed Fountain under arrest and

put him in his patrol car.

Upon searching Fountain's car, McKay found marijuana, rolling

papers, razor blades and Fountain's wallet in the console of the

car.   McKay also found a "small corncob pipe" in front of the

driver's seat, "where Fountain's feet would have been."   Finally,

he found a pellet gun "stuffed" between the driver's seat and the

console.   McKay could not see the gun when Fountain was in the car

"because his leg was next to it."    However, after Fountain and the

passenger had gotten out of the car, when McKay "stuck [his] head

in . . . [he] could see the [pellet gun] . . . ."   He stated,

"very little . . . just the very back of the grip" of the gun

protruded above the level of the seat.   Fountain claimed that the

gun belonged to his wife and that he had forgotten it was in the

car.   Fountain had been previously convicted of malicious

wounding, a felony.

At the close of the Commonwealth's evidence, Fountain raised a

motion to strike arguing that the Commonwealth had failed to

establish concealment, as well as Fountain's knowledge of the

presence of the gun at the time he was approached by McKay.    The

trial court denied the motion.    Fountain renewed his motion at the

close of the evidence.   It was again denied by the trial court.

On appeal, Fountain contends only that the trial court erred in

                                 - 3 -
finding the evidence sufficient to support the conviction because

the Commonwealth failed to establish that Fountain concealed the

gun, or that he intended to conceal the gun.

Code § 18.2-308.2 provides as follows, in relevant part:

          A. It shall be unlawful for (i) any person
          who has been convicted of a felony . . . to
          knowingly and intentionally carry about his
          person, hidden from common observation, any
          weapon described in subsection A of
          § 18.2-308.

Pursuant to Code § 18.2-308(A), as it read at the time of the

offense, it is a crime to conceal from common observation, "any

pistol, revolver, or other weapon designed or intended to propel

a missile of any kind . . . or [] any weapon of like kind as

those enumerated in this subsection . . . ." 4

     Referring to Code § 18.2-308, the Supreme Court of Virginia

has stated "'[t]he purpose of the statute [is] to interdict the

practice of carrying a deadly weapon about the person, concealed,

and yet so accessible as to afford prompt and immediate use.'" 5

Code § 18.2-308.2(A) defines a concealed weapon as one "hidden

from common observation."   "Such a weapon is 'hidden from common

observation when it is observable[,] but is of such deceptive



     4
       In 2001, the General Assembly amended the section by
inserting the phrase "by action of an explosion of any
combustible material" at the end of clause (i) in subsection A.
     5
       Schaaf v. Commonwealth, 220 Va. 429, 430, 258 S.E.2d 574,
574-75 (1979) (quoting Sutherland's Case, 109 Va. 834, 65 S.E.
15 (1909)).


                               - 4 -
appearance as to disguise the weapon's true nature.'"6     Therefore,

where a weapon is "hidden from all except those with an unusual or

exceptional opportunity to view it," it is hidden from public view

and "concealment of it in this fashion [is] unlawful." 7    Here, the

evidence, when viewed in the light most favorable to the

Commonwealth, demonstrates that initially McKay was unable to see

the gun "because [Fountain's] leg was next to it."     Further, once

Fountain got out of the car and McKay "stuck [his] head in the

car," he could see "very little" of the pellet gun – namely, "just

the very back of the grip" of the gun, protruding above the seat.

From this evidence, the fact finder could infer beyond a

reasonable doubt that the pellet gun was "hidden from all except

those with an unusual or exceptional opportunity to view it" and

therefore, that it was concealed from public view. 8   We do not

address Fountain's argument concerning whether the Commonwealth

established he intended to conceal the gun, or whether he made

some conscious effort to conceal it, as our review of the record

reveals that Fountain raised no such argument below.     Instead,

Fountain merely argued that the gun was not factually concealed.


     6
       Main v. Commonwealth, 20 Va. App. 370, 372, 457 S.E.2d
400, 401 (1995).
     7
         Id. at 372, 373, 457 S.E.2d at 402.
     8
       See id. at 371, 457 S.E.2d at 401 ("We hold that carrying
a weapon in one's back pocket, covered by a duffle bag,
constitutes carrying a concealed weapon if the handle of the
weapon, the only part of the weapon extending outside of the
pocket, is concealed by the duffle bag.").

                                - 5 -
Thus, Rule 5A:18 bars our consideration of this issue. 9   Further,

the record reflects no reason to invoke the good cause or ends of

justice exceptions to Rule 5A:18. 10

For the foregoing reasons, we affirm the judgment of the trial

court.

                                                           Affirmed.




     9
       See Rule 5A:18; see also Ohree v. Commonwealth, 26 Va.
App. 299, 308, 494 S.E.2d 484, 488 (1998) ("The Court of Appeals
will not consider an argument on appeal which was not presented
to the trial court.").
     10
       Nevertheless, the evidence clearly demonstrated that
Fountain had knowledge the gun was in the car, as he told
Officer McKay that "he'd forgot[ten] that it was in the car."
Further, the gun was found between the driver's seat and the
console of the "small, two seat, sports" car. Thus, it was
directly next to Fountain as he operated the car. Further,
Fountain's wallet was in the console between the seats. From
these facts, it is reasonable to assume that the gun was at
least visible to Fountain while he was in the car.

                                - 6 -
