McMillan v. Commonwealth

¶1joins, dissenting.

¶2I am not prepared to signal, as some of my colleagues are, my willingness to strike down Code § 18.2-308(A) as unconstitutionally vague. Ante at 402, 686 S.E.2d at 530, 405-06, 686 S.E.2d at 531-32; post at 409-10, 686 S.E.2d at 533-34. Neither party has raised that issue in this case. And we do not have the benefit of either briefing or oral argument on the subject. I also question whether it is “appropriate for judges to heap either praise or censure upon a legislative measure that comes before them,” Kansas v. Marsh, 548 U.S. 163, 186, 126 S.Ct. 2516, 2532, 165 L.Ed.2d 429 (2006) (Scalia, J., concurring), particularly when doing so concludes with the suggestion that the legislature should give the judicially censured statute a “decent burial,” ante at 406, 686 S.E.2d at 532.

¶3The only issue before us is whether McMillan’s knife— which he admittedly possessed “for protection” and kept by his side in a sheath riveted to the inside of the driver’s door of his vehicle—was a weapon of “like kind” to one of the knives listed in Code § 18.2-308(A). The trial judge, sitting as factfinder, found it was. Finding no error of law in the trial judge’s reading of the statute and no factual insufficiency in the evidence, I would affirm his judgment.

¶4Code § 18.2-308(A) treats a knife as a “weapon” if it is either “designed for fighting purposes” or nonetheless “commonly understood” to be a weapon. Thompson v. Commonwealth, 277 Va. 280, 288, 673 S.E.2d 469, 472-73 (2009) (citation omitted). Thus, a knife becomes a statutory weapon either by design or by common use. If a knife constitutes a weapon under either definition, the knife fits within the “like kind” category only if it is “substantially similar” to one of the knives specifically mentioned in Code § 18.2-308(A). Id. at 290, 673 S.E.2d at 473.

¶5*408In this case, the trial court found that McMillan’s knife was a weapon substantially similar to a “dirk”—one of the knives specifically mentioned in Code § 18.2-308(A). “A ‘dirk’ or weapon of like kind is any stabbing weapon having two sharp edges and a point, including daggers, short swords and stilettos.” Richards v. Commonwealth, 18 Va.App. 242, 246 n. 2, 443 S.E.2d 177, 179 n. 2 (1994) (emphasis added), quoted with approval in Thompson, 277 Va. at 290, 673 S.E.2d at 473. A dagger is nothing more than a fixed-blade “short knife used for stabbing” purposes. Thompson, 277 Va. at 290, 673 S.E.2d at 473.

¶6The inscription on McMillan’s fixed-blade knife identifies it as a Hammond A.B.C., type 2605. The primary bevels on the symmetrically tapered blade create a spear-point tip centered along the blade’s long axis. One edge has a straight v-shaped bevel. The other edge has a beveled tip followed by a sharpened serration. Both the straight and serrated edges are razor sharp. The hilt lacks a protruding guard, but uses instead a deeply indented tang—notched for enhanced grip— to accomplish the same purpose.9 The knife has three large holes drilled though the skeleton handle. The actual knife, pictured below,10 measures about 8$ inches long:

¶7[[Image here]]

¶8This knife is nothing “like a kitchen knife, pocket knife, box cutter, butterfly knife, or letter opener.” Ante at 401, 686 S.E.2d at 529. Instead, McMillan’s knife is an aggressively crafted weapon “designed for stabbing purposes like a dagger,” Thompson, 277 Va. at 291, 673 S.E.2d at 474, substantial*409ly similar (though not identical) in design and function to a dirk.

¶9In reaching this conclusion, I see no reason why we should not also take into account McMillan’s statement about his ongoing use of the knife as a weapon for his personal protection. See ante at 400, 686 S.E.2d at 529; post at 411, 686 S.E.2d at 584 n. 12. Farrakhan held that “[subsequent use or circumstances may not be considered in the definitional analysis of “weapon.’ ” Farrakhan v. Commonwealth, 273 Va. 177, 182, 639 S.E.2d 227, 230 (2007) (emphasis added); see also Thompson, 277 Va. at 291, 673 S.E.2d at 474. That holding, however, begs the question: Subsequent to what? Farrakhananswers in the sentence immediately preceding: “Because an offense under Code § 18.2-308(A) is ‘possessory’ in nature, it is committed upon concealment.” Farrakhan, 273 Va. at 182, 639 S.E.2d at 230.

¶10Thus, as Farrakhanmakes clear, the subsequent use that cannot be considered is the defendant’s use of the knife after he conceals it—that is, after he commits the crime. In contrast, his intended use when he conceals it—that is, when he commits the crime—while obviously not dispositive is still relevant. To be sure, if a defendant understands a specific type of knife to be an effective fighting weapon (particularly if he conceals it solely for this purpose), that fact may corroborate the inference that the knife is “commonly understood” to be a weapon. See Thompson, 277 Va. at 288, 673 S.E.2d at 472 (holding that a knife can be a weapon either by design or common use); cf. ante at 401, 686 S.E.2d at 529 n. 4 (acknowledging that the defendant’s “intended use for the knife” could be relevant “to a determination of the knife’s common use”).

¶11For these reasons, I respectfully dissent.

¶14dissenting.

¶15It would be difficult to point to a statute in the Code of Virginia that contains language more confusing, vague, and difficult to parse than Code § 18.2-308(A). For many years, both this Court and our Supreme Court have strived mightily to construe it in a way that recognizes its presumptive constitutionality and, at the same time, to apply its sometimes archaic and rather vague itemization of prohibited weapons to more modern implements that have equivalent utility for doing *410violence to others. Here, we are once again called upon to answer the increasingly metaphysical question of when is a knife a “weapon.”11 On the record before us and for the reasons that follow, I must respectfully disagree with the majority’s holding that McMillan’s knife is not a weapon within the meaning of Code § 18.2-308.2. Therefore, I dissent from the judgment.

¶16Code § 18.2-308.2 provides that it is a felony for a previously convicted felon “to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308.” Code § 18.2-308(A) enumerates several weapons, including, “any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor” or “any weapon of like kind as those enumerated in this subsection.” As explained by the Supreme Court in Farrakhan v. Commonwealth, 273 Va. 177, 182, 639 S.E.2d 227, 230 (2007), the courts must undertake a multi-step analysis to determine whether an item falls within the scope of Code § 18.2-308(A). See also Thompson v. Commonwealth, 277 Va. 280, 287, 673 S.E.2d 469, 472 (2009).

¶17First, the Court explained, “[i]f the bladed item in question meets the definition of an enumerated item within Code *411§ 18.2-308(A), the evidence is clearly sufficient for a conviction under the statute.” Farrakhan, 273 Va. at 182, 639 S.E.2d at 230. If it does not meet the definition of one of the enumerated items, it must then be established as a “weapon.” Id.If it is determined to be a “weapon,” it then must be a weapon “of like kind” to one of the enumerated weapons to be proscribed by Code § 18.2-308(A). Id. “Generally, a weapon is ‘an instrument of offensive or defensive combat: something to fight with.’ ” Gilliam v. Commonwealth, 49 Va.App. 508, 514, 642 S.E.2d 774, 777 (2007) (quoting Delcid v. Commonwealth, 32 Va.App. 14, 18, 526 S.E.2d 273, 275 (2000)); see also Thompson, 277 Va. at 288, 673 S.E.2d at 472 (noting that this is the definition used by the Court of Appeals). An item is a “weapon” if “the evidence demonstrates that it is ‘designed for fighting purposes’ or ‘commonly understood to be a “weapon.” ’ ” Thompson, 277 Va. at 288, 673 S.E.2d at 472 (quoting Farrakhan, 273 Va. at 182, 639 S.E.2d at 230). It is a weapon “of like kind” if it “ ‘possesses such similar characteristics to the enumerated items in Code § 18.2-308(A) such that its concealment is prohibited.’ ” Id. at 289, 673 S.E.2d at 473 (quoting Farrakhan, 273 Va. at 182, 639 S.E.2d at 230). Given the holding of our Supreme Court in Thompson, I now agree with the majority that the knife in question here does not meet the definition of an enumerated item.12 However, I disagree with the majority that the knife in this case is not a weapon at all and, because it exhibits many of the characteristics of both a bowie knife and a dirk, I would hold that it meets the definition of a “weapon” and is a weapon “of like kind” to either or both.13

¶18*412In determining whether an item is “designed for fighting purposes” or “commonly understood to be a weapon” the court looks to the physical characteristics and method of operation of the item. Thompson, 277 Va. at 289, 673 S.E.2d at 472 (“[T]he evidence at trial concerning the knife’s physical characteristics and method of operation established that it is ‘designed for fighting purposes’ or is ‘commonly understood to be a “weapon.” ’ ” (citation omitted)). In Thompson, the Supreme Court concluded that the evidence was sufficient to prove that it was a weapon based not only on the officer’s testimony that it was an item carried by gang members in the past and dangerous to police officers, but also based on the officer’s testimony of the knife’s physical characteristics and design. Id. at 288, 673 S.E.2d at 472. In Gilliamthis Court determined that the knife in question was a weapon based on its physical characteristics and on the fact that “the knife is clearly not an ‘innocuous household [knife or an] industrial kni[fe] which may be carried for legitimate purposes.’” 49 Va.App. at 514-15, 642 S.E.2d at 777-78 (2007) (quoting Richards v. Commonwealth, 18 Va.App. 242, 246 n. 2, 443 S.E.2d 177, 179 n. 2 (1994)).14

¶19*413[[Image here]]

¶20As shown in the photograph above, the knife here consists of a fixed blade with one sharp edge and one serrated edge culminating in a point suitable for stabbing. The knife is eight and one half (8 1/2) inches long with the blade measuring about four (4) inches. At trial, the officer described the knife as “rigid [[sic], in context it is obvious that what he actually said was “ridged”] on one side, smooth on the other, comes to a point,” and further described it as “some sort of diver’s knife.” While the officer described it as a diver’s knife and did not mention the knife’s method of operation, purpose for which it is designed, or uses which it is commonly understood to be put to, we have the physical description on the record and the actual knife before us as an exhibit. In addition we have the trial court’s factual finding that it is “two-edged” and has “a point to it.” Based on these facts, this knife is not just an “innocuous household knife” nor is it an “industrial knife” carried for a legitimate purpose.15 Thus, in my view and contrary to the holding of the majority, the evidence at trial established that the knife in issue is a bladed instrument that can be used for offensive or defensive combat and is therefore “commonly understood to be a ‘weapon.’ ”

¶21*414Because I would hold that the knife in this ease is a weapon, I now turn to whether the knife “‘possesses such similar characteristics to the enumerated items in the Code § 18.2-308(A) such that its concealment is prohibited.’ ” Thompson, 277 Va. at 289, 673 S.E.2d at 473 (quoting Farrakhan, 273 Va. at 182, 639 S.E.2d at 230). To be a weapon “of like kind,” the item has to be “substantially similar” to an enumerated weapon. Id. at 290, 673 S.E.2d at 473. In addition to the dictionary definition recited in Wood, supra note 13, other characteristics of a bowie knife are that it is “ ‘a stabbing weapon having a single sharp edge, a dull or serrated flat edge and a point, such as a hunting knife, a fishing knife or a survivalist’s knife.’ ” Gilliam, 49 Va.App. at 514 n. 5, 642 S.E.2d at 777 n. 5 (quoting Richards, 18 Va.App. at 246 n. 2, 443 S.E.2d at 179 n. 2). Both definitions are consistent with each other and I therefore take them together in determining whether the weapon in this case is “of like kind” to a bowie knife.16 Moreover, as noted in Wood and reiterated in Thompson, a dirk is “a long straight-bladed dagger or a short sword.” Thompson, 277 Va. at 282, 673 S.E.2d at 473.

¶22The knife in question in this case, while not precisely congruent to either, has many significant similarities to both a bowie knife and a dirk. Here, even though the knife is not ten to fifteen (10-15) inches long, nor does it have a slight dip at the top of the blade, it has other substantially similar characteristics to both types of weapon. The knife here is eight and one half (8 1/2) inches long and is clearly designed for either cutting or stabbing. Its blade has one sharp edge, a serrated flat edge, and comes to a sharp point. As a “diver’s knife,” it *415is certainly akin to a hunting, fishing or survivalist’s knife. It also has a fixed blade suitable for stabbing like a dagger, and it is typically carried in a sheath and thus shares the essential characteristics of a dirk. In my view, even though the officer describes the knife as being a “diver’s knife,” this fact does not take away the knife’s obvious physical characteristics that are substantially similar to those of both a bowie knife and a dirk. Applying these two definitions separately to the knife in question, I would hold that it is substantially similar and thus “of like kind” to both a bowie knife and a dirk and therefore proscribed by the statute.

¶23Because I would hold that McMillan’s knife is a “weapon of like kind,” I would also address McMillan’s contention that the knife was not concealed. That argument, however, is one that he makes for the first time on appeal. In his brief, McMillan acknowledged that he failed to present that argument to the trial court, and asks us to invoke the “ends of justice” exception of Rule 5A:18 and address the merits of his claim.

¶24Rule 5A:18 provides that “[n]o ruling of the trial court ... will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” “The ends of justice exception to Rule 5A:18 is narrow and is to be used sparingly.” Copeland v. Commonwealth, 42 Va.App. 424, 442, 592 S.E.2d 391, 399 (2004). In order for the exception to apply, “[t]he record ‘must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.’ ” Akers v. Commonwealth, 31 Va.App. 521, 528 n. 2, 525 S.E.2d 13, 16 n. 2 (2000) (quoting Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997)).

¶25“In order to show that a miscarriage of justice has occurred, an appellant must demonstrate more than that the Commonwealth failed to prove an element of the offense.” Redman, 25 Va.App. at 221, 487 S.E.2d at 272-73. The “appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense or the record must affirmatively prove *416that an element of the offense did not occur.” Id. at 222, 487 S.E.2d at 273. “Therefore, ‘in examining a case for miscarriage of justice, we do not simply review the sufficiency of the evidence under the usual standard, but instead determine whether the record contains affirmative evidence of innocence or lack of a criminal offense.’ ” Wheeler v. Commonwealth, 44 Va.App. 689, 692, 607 S.E.2d 133, 135 (2005) (quoting Lewis v. Commonwealth, 43 Va.App. 126, 134, 596 S.E.2d 542, 546 (2004)).

¶26McMillan does not claim that carrying a concealed weapon is not a criminal offense. Thus, for the ends of justice exception to be applicable here, the record must contain evidence affirmatively proving that McMillan’s knife was not “hidden from common observation.” Code § 18.2-308.2. Trooper Powell’s testimony is the only information in the record regarding the location of McMillan’s knife. Trooper Powell testified that he found the knife in a sheath that was “riveted” to the inside of the driver’s side door of McMillan’s truck. When asked where the sheath was riveted to the door, Powell answered, “Midway, accessible to his left hand.” Regardless of whether that testimony is sufficient to prove that the knife was hidden from common observation, it does not affirmatively prove that it was not. Thus, the ends of justice exception is not applicable.

¶27For these reasons, I would affirm McMillan’s conviction for carrying a concealed weapon.