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Present:    All the Justices
ERIC WAYNE ARMSTRONG
                                                                    OPINION BY
v.    Record No.  011948                                            JUSTICE LAWRENCE L. KOONTZ, JR.
April  19,  2002
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals of
Virginia correctly determined that in a prosecution for
violation of Code  §  18.2-308.2, which provides that it is
unlawful for a person previously convicted of a felony  “to
knowingly and intentionally possess  .  .  . any firearm,” the
Commonwealth is not required to prove as an element of the
offense that the object possessed by the defendant was an
“operable” firearm.
BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party in the trial, granting to it all reasonable
inferences fairly deducible therefrom.    Dowden v. Commonwealth,
260 Va.  459,  461,  536 S.E.2d  437,  438  (2000).
On February  12,  1998, the Sheriff of Highland County,
assisted by several other law enforcement officers, executed a
search warrant at the home of Eric Wayne Armstrong.    Following
the seizure of suspected illegal drugs and drug paraphernalia,




Armstrong was placed under arrest.    During the search, the
Sheriff and several of the other officers each observed a semi-
automatic  .22 caliber rifle inside a gun cabinet.    The rifle was
not examined in any detail at that time because the gun cabinet
was locked and Armstrong did not have the key to it.
Armstrong, who had a prior felony conviction, was later
charged with being a felon in possession of a firearm in
violation of Code  §  18.2-308.2.    At a subsequent preliminary
hearing, Armstrong’s counsel delivered the rifle to the Sheriff.
However, the Sheriff did not cause the rifle to be inspected or
test-fired while it was in his possession.
At trial, the rifle was introduced into evidence.    Melvin
Eugene Armstrong, Armstrong’s cousin, testified that the rifle
belonged to him, but that he had unintentionally left the rifle
at Armstrong’s home during a prior hunting season.    He testified
that he had purchased the rifle in October  1997 and produced a
receipt with a serial number matching the serial number on the
rifle.    He further testified that the rifle  “wouldn’t fire
.    You could pull the trigger but the gun won’t go off
[T]he firing pin ain’t hitting the casing so I assume
it’s got something to do with the spring in there or the firing
pin one.”    He stated that while he was hunting  “it just stopped
shooting.”
2




Armstrong did not dispute his prior felony conviction or
his possession of the rifle.    Rather, his defense was based
solely on his assertion that the rifle was not a  “firearm”
within the meaning of Code  §  18.2-308.2 because it was
inoperable.    The trial court rejected Armstrong’s assertion and
found him guilty of a violation of this statute.    The trial
court sentenced Armstrong to two years’ imprisonment, suspending
all but seven months of that sentence.1
Armstrong noted an appeal to the Court of Appeals,
asserting that the trial court had erred in finding that
possession of an inoperable firearm constituted a violation of
Code  §  18.2-308.2.    In an unpublished opinion, a panel of the
Court of Appeals, with one judge dissenting, affirmed
Armstrong’s conviction.    Armstrong v. Commonwealth, No.  1388-9-3
(November  21,  2000)  (hereinafter Armstrong I).    Quoting Williams
v. Commonwealth,  33 Va. App.  796,  807,  537 S.E.2d  21,  26  (2000),
decided the same day as Armstrong I, the panel majority held
that Code  §  18.2-308.2  “  ‘prohibits felons from possessing
actual firearms that are presently operable or that can readily
or easily be made operable or capable of being fired with
1 Armstrong was also convicted of misdemeanor possession of
marijuana and received a fine of  $150 for that offense.    Due to
an apparent clerical error, the sentencing order imposes this
fine in addition to the prison time for the firearm offense and
fails to impose a sentence for the marijuana charge.
3




minimal effort and expertise.’  ”    Armstrong I, slip op. at  3
(emphasis added).    Relying on this latter requirement of proof,
the panel majority held that  “while currently inoperable, the
only defect in  [Armstrong’s rifle] was that the  ‘firing pin’
would not hit the  ‘casing,’ a condition that  ‘could be readily
or easily restored to  [one] of operability.’  ”    Id. at  4.    The
dissenting judge, while concurring that the issue was controlled
by Williams, was of opinion that the Commonwealth’s evidence had
failed to show that the rifle could be made operable  “‘on a
moment’s notice.’  ”    Id. at  6  (Frank, J., dissenting)  (quoting
Timmons v. Commonwealth,  15 Va. App.  196,  200-01,  421 S.E.2d
894,  897  (1992)).
Armstrong filed a petition for rehearing en banc, which was
granted.    Following argument before the full Court of Appeals, a
majority, with one judge dissenting, affirmed Armstrong’s
conviction.    Armstrong v. Commonwealth,  36 Va. App.  312,  549
S.E.2d  641  (2001)  (en banc)  (hereinafter Armstrong II).
The en banc majority, however, rejected the view adopted by
the majority in the panel decision and reached its decision on
grounds not asserted by either Armstrong or the Commonwealth in
the appeal.    Rather, the majority opined that the prior panels
in both Williams and Gregory v. Commonwealth,  28 Va. App.  393,
504 S.E.2d  886  (1998), a decision relied upon by the panel in
Williams, had misconstrued the holding of Jones v. Commonwealth,
4




16 Va. App.  354,  429 S.E.2d  615, aff’d on reh’g en banc,  17 Va.
App.  233,  436 S.E.2d  192  (1993), a case which had previously
construed the term  “firearm” as used in Code  §  18.2-308.2.
Gregory affirmed the conviction of a felon in possession of an
unloaded rifle; Williams reversed the conviction of a felon in
possession of an inoperable, rusty pistol.
The majority began its analysis by noting that Code  §  18.2-
308.2 does not define the term  “firearm” and that in Jones the
Court had applied a  “traditional” definition of firearm in
concluding that this statute did not prohibit the possession of
a BB handgun.2    The majority then opined that in Gregory the
Court had  “diverted from the holding in Jones” by requiring the
Commonwealth, pursuant to this statute, to prove that the weapon
is designed or intended to expel projectiles by the discharge or
explosion of gunpowder and that it is capable of doing so.
Continuing, the majority noted that the Court in Williams had
“reiterated” these elements of proof by requiring the
Commonwealth to prove that the accused possessed an object
manufactured for the purpose of expelling a projectile by an
2 The traditional definition of firearm applied by the Court
in Jones was any weapon from which a shot is discharged by
gunpowder.                                                             16 Va. App. at  356,  429 S.E.2d at  616  (citing
Webster’s Third International Dictionary  854  (1981)).    The Court
in Jones concluded that a BB handgun propels a projectile by
pneumatic pressure rather than by gunpowder.
5




explosion and that the object is presently operational or can
readily or easily be made operational or capable of being fired
with minimal effort and expertise.    Armstrong II,  36 Va. App. at
315-16,  549 S.E.2d at  643.
The majority reasoned that the  “presently operational,” or
“ready capability,” element of proof was contrary to the
language of Code  §  18.2-308.2 and had caused confusion.    The
majority further reasoned that the focus of the analysis in
Jones had been on the distinction between those instances where
a broad definition of the term is applied to statutes that
criminalize the use of a firearm, see, e.g., Code  §  18.2-53.1
(use of a firearm in the commission of a felony), and those in
which the more narrow, traditional definition suffices to
promote the purpose of a statute, such as Code  §  18.2-308.2,
that criminalizes the simple possession of a firearm.    The
majority noted that in the former instance, the purpose of the
statute is to deter the perpetration of crimes that put the
victim in fear of harm as the result of the perception that a
firearm is being used, while the act of firearm possession
involves no perception element by a victim.    Armstrong II,  36
Va. App. at  317 and n.4,  549 S.E.2d at  643 and n.4.
The majority concluded that Code  §  18.2-308.2 expressed a
“legislative intent of keeping firearms out of the hands of
convicted felons,” id. at  318,  549 S.E.2d at  644, and, further,
6




that  “[t]he General Assembly included no language in the statute
to circumscribe the absolute prohibition of a convicted felon’s
possession of a firearm.    It matters not whether the gun’s
current condition is  ‘operable’ or  ‘inoperable.’”    Id. at  320,
549 S.E.2d at  645.                                                       “When enacting Code  §  18.2-308.2, the
General Assembly’s intent was clear:    A felon cannot possess any
firearm.”    Id. at  321,  549 S.E.2d at  645.
Thus, the majority affirmed Armstrong’s conviction, holding
that  “[i]n a prosecution under Code  §  18.2-308.2, once the
Commonwealth proves the accused is a convicted felon who
possessed an object made to  ‘expel a projectile by the
combustion of gunpowder or other explosive,’ then it has proven
all the necessary elements of the crime based on the plain
language of the statute.”    Id. at  320-21,  549 S.E.2d at  645.    In
so holding, the majority, pursuant to Code  §  17.1-402(D), stated
that it was expressly overruling Gregory and Williams, and, to
the extent that Jones could be read to establish a requirement
of proof that the firearm was operable or could readily be made
so, Jones also was overruled.    Id. at  321,  549 S.E.2d at  645-46.
The dissenting judge took the view that in Jones the Court
had held that proof that the  “device has the actual capacity to
do harm because of its ability to expel a projectile by the
power of an explosion” was an element of the Commonwealth’s
burden to establish that the defendant had possessed a  “firearm”
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in violation of Code  §  18.2-308.2.    Id. at  322-23,  549 S.E.2d at
646  (Benton, J., dissenting)  (quoting Jones,  16 Va. App. at  357,
429 S.E.2d at  617).    Noting that the General Assembly had
revised Code  §  18.2-308.2 subsequent to Jones  “without any
indication that it has disagreed with” this statement in Jones,
Armstrong II,  36 Va. App. at  323,  549 S.E.2d at  646, the dissent
opined that the majority’s  “only compelling feature is that it
has garnered a sufficient number of votes to overrule our prior
decisions.”    Id. at  325,  549 S.E.2d at  648.    Accordingly, citing
Bouie v. City of Columbia,  378 U.S.  347,  353  (1964), the dissent
further opined that the majority had violated Armstrong’s due
process rights by  “a radical lowering of the threshold for
[obtaining a] conviction” under Code  §  18.2-308.2.
Armstrong II,  36 Va. App. at  325,  549 S.E.2d at  647.
By order dated November  14,  2001, we awarded Armstrong this
appeal.
DISCUSSION
This Court has not previously construed the term  “firearm”
as used in Code  §  18.2-308.2.3    As he did in the Court of
3 Gregory, one of the cases overturned by the Court of
Appeals in Armstrong II, was the subject of a petition for
appeal in this Court that was refused in an unpublished order.
See Gregory v. Commonwealth, Record No.  982169  (December  17,
1998).    As we have recently noted, while  “the refusal of a
petition for appeal is based upon the merits of the case  .  .  .
unless the grounds upon which the refusal is based is
8




Appeals, Armstrong concedes that the  .22 caliber rifle found in
his home was originally designed and manufactured to expel a
bullet by the explosion of gunpowder and that the evidence was
sufficient to prove that the rifle was in his possession at the
time of his arrest.    Because the rifle was not presently
operable, Armstrong urges this Court to hold that the Court of
Appeals, in overturning the established precedent of Gregory and
Williams, violated his due process right to be adequately
informed of the nature of the offense with which he had been
charged.    In the alternative, Armstrong further urges that we
reverse the judgment of the Court of Appeals overruling Gregory
and Williams, and, applying the rationale of those cases, that
we adopt the view of the dissent in Armstrong I that the
Commonwealth failed to carry its burden to produce sufficient
evidence to show that the rifle in his possession was an
operable firearm or could be readily and easily made so.
Due Process Considerations
Armstrong relies on Bouie, the United States Supreme Court
opinion cited by the dissent in Armstrong II, for the
discernable from the four corners of the Court’s order, the
denial carries no precedential value.”    Sheets v. Castle,  263
Va.  407,  412,  559 S.E.2d  616,  619  (2002).    Jones was decided
adverse to the Commonwealth and predated the enactment of the
statute permitting the Commonwealth to appeal adverse decisions
of the Court of Appeals.    Williams, also decided adverse to the
Commonwealth, was not appealed by the Commonwealth.
9




proposition that the Court of Appeals’ rejection of Williams and
Gregory was  “an unforeseeable judicial enlargement of a criminal
statute, applied retroactively,  [which] operates precisely like
an ex post facto law” in violation of the defendant’s due
process rights.    Bouie,  378 U.S. at  353.    Thus, he contends that
even if the Court of Appeals erred in those prior cases in
requiring the Commonwealth to prove, under Code  §  18.2-308.2,
that the firearm was operable or could be readily made so, at
the time of his trial that was nonetheless the state of the law
which should be applied in his case.
Armstrong’s reliance on Bouie is misplaced.    Bouie applies
to changes in the interpretation of a criminal statute that are
“indefensible by reference to the law that had been expressed
prior to the conduct in issue.”    Id. at  354  (emphasis added).
As the majority in Armstrong II noted, and as the record clearly
establishes, the conduct which resulted in Armstrong being
charged with a violation of Code  §  18.2-308.2 antedates the
Court of Appeals’ decisions in Gregory and Williams.    See United
States v. Lanier,  520 U.S.  259,  266  (1997); accord Rogers v.
Tennessee,  532 U.S.  451,  457-62  (2001).
In addition, while published panel decisions of the Court
of Appeals are precedent binding on other panels of that Court,
the precedent remains subject to review by the Court of Appeals
sitting en banc and by this Court on appeal.    Commonwealth v.
10




Burns,  240 Va.  171,  173-74,  395 S.E.2d  456,  457  (1990).    By
contrast, the concern expressed in Bouie related to  “a State
Supreme Court” using judicial construction to subvert due
process, leaving the defendant with no avenue of redress from
the state.    See Bouie,  378 U.S. at  353-54.    Such is not the case
here.    Accordingly, there can be no implication that in
overturning the panel decisions in Gregory and Williams, the en
banc Court of Appeals violated Armstrong’s due process rights.
Meaning of  “Firearm” in Code  §  18.2-308.2
“[P]enal statutes must be  ‘strictly construed against the
State’ and                                                               .  .  .  ‘cannot be extended by implication or
construction, or be made to embrace cases which are not within
their letter and spirit.’  ”    Commonwealth, Dep’t of Motor
Vehicles v. Athey,  261 Va.  385,  388,  542 S.E.2d  764,  766  (2001)
(quoting Berry v. City of Chesapeake,  209 Va.  525,  526,  165
S.E.2d  291,  292  (1969)).    However, although we construe statutes
strictly in criminal cases, we will not apply  “an unreasonably
restrictive interpretation of the statute” that would subvert
the legislative intent expressed therein.    Ansell v.
Commonwealth,  219 Va.  759,  761,  250 S.E.2d  760,  761  (1979).
Consistent with these principles, we have recognized that
when the legislature seeks to punish the use of a firearm as a
criminal act, the term  “firearm” must not be unreasonably
restricted by judicial construction such that the legislative
11




intent is thereby frustrated.    See, e.g., Holloman v.
Commonwealth,  221 Va.  196,  198,  269 S.E.2d  356,  358  (1980)  (per
curiam)  (holding that Code  §  18.2-53.1, criminalizing use or
display of a firearm in the commission of a felony, included use
of  “an instrument that gives the appearance” of being a
firearm).    Similarly, when the nature of some other criminal act
is defined by whether the defendant achieves his purpose through
the use of a firearm, a narrow construction of the term is not
warranted.    See, e.g., Johnson v. Commonwealth,  209 Va.  291,
296,  163 S.E.2d  570,  574  (1968)  (charge that attempted robbery
involved  “  ‘presenting of firearms or other violence’  ” did not
warrant jury instruction that the instrument displayed was an
operable firearm).    The rationale underlying this interpretation
of statutes prohibiting the use of a firearm in various contexts
is the same.    As we succinctly stated in Holloman with respect
to the construction of the term  “firearm” in Code  §  18.2-53.1:
The purpose  .  .  . is  [not only] to deter violent
criminal conduct  .  .  . but also  .  .  . to discourage
criminal conduct that produces fear of physical harm.
Such fear of harm results just as readily from
employment of an instrument that gives the appearance
of having a firing capability as from use of a weapon
that actually has the capacity to shoot a projectile.
The victim of a crime can be intimidated as much by a
revolver that does not fire bullets as by one that
does.
Holloman,  221 Va. at  198,  269 S.E.2d at  358; see also Kelsoe v.
Commonwealth,  226 Va.  197,  199,  308 S.E.2d  104,  104  (1983)  (per
12




curiam)  (gravamen of the offense of brandishing a firearm is the
inducement of fear in another).
By contrast, the conduct proscribed by Code  §  18.2-308.2,
being a felon in possession of a firearm, focuses on the General
Assembly’s determination that certain individuals  - felons  - are
unfit to possess firearms, even for lawful purposes.4
Undoubtedly that determination is consistent with the view held
by society in general.    Thus, we are of opinion that the
legislative intent underlying Code  §  18.2-308.2 is not directed
toward proscribing  “criminal conduct that produces fear of
physical harm” to an individual victim and, accordingly, the
offense has no element of perception by a victim that would
warrant applying the same broad construction to the term
“firearm” in that statute as is applicable to the same term in
Code  §  18.2-53.1.    Because the legislative intent of Code
§  18.2-308.2 is to prohibit convicted felons from possessing
“any firearm”  (emphasis added), we must consider what meaning of
the term  “firearm” will give effect to that intent without
4Similarly, the General Assembly has determined that other
persons are unfit to possess firearms and other dangerous
weapons.    Cf. Code  §§  18.2-308.1:1,  18.2-308.1:2,  18.2-308.1:3
(prohibiting possession of firearms by certain persons
adjudicated as mentally ill or incompetent),  18.2-308.2:01
(prohibiting possession of certain firearms by illegal aliens),
18.2-308.4  (prohibiting possession of firearms by persons in
possession of certain controlled substances).
13




improperly expanding or unreasonably restricting the meaning of
the language used by the General Assembly.
As noted by the Court of Appeals, Code  §  18.2-308.2
provides no express definition of the term  “firearm.”
Similarly, other statutes within Title  18.2 use the term
“firearm” without providing an express definition of that term.
See, e.g., Code  18.2-308.5.    However, other related statutes do
provide definitions of that term.    Accordingly, we may look to
the related statutes, reading them in pari materia with the
statute under consideration, in order to give consistent meaning
to the language used by the General Assembly.    Lucy v. County of
Albemarle,  258 Va.  118,  129,  516 S.E.2d  480,  485  (1999).
Code  §§  18.2-308.2:2 and  18.2-308.2:3 define a firearm as
“any handgun, shotgun, or rifle which expels a projectile by
action of an explosion.”    Code  §  18.2-308(M) defines a  “handgun”
as an instrument  “originally designed, made and intended to fire
a projectile by means of an explosion of a combustible material
from one or more barrels.”    Code  §  18.2-433.1 defines a
“Firearm” as  “any weapon which is designed to or may readily be
converted to expel any projectile by the action of an explosive;
or the frame or receiver of any such weapon.”    Similar
definitions of a firearm or a specific type of firearm may be
found, for example, in Code  §§  18.2-287.4,  18.2-308.2:01,  18.2-
308.7, and  22.1-277.01(D).
14




None of these statutory definitions reflect a legislative
intent in a statute that prohibits the possession of a firearm
to limit the term  “firearm” to one that is presently operable.
We are of opinion that the General Assembly intended to include
any instrument designed, made, and intended to fire or expel a
projectile by means of an explosion within the definition of a
firearm, absent express language to the contrary.    And we are
further of opinion that to read into Code  §  18.2-308.2 by
implication a requirement that the meaning of the term  “firearm”
includes an element of present capacity or operability would
amount to an unreasonably restrictive interpretation of that
term and subvert the intent of the General Assembly.
We hold that in order to sustain a conviction for
possessing a firearm in violation of Code  §  18.2-308.2, the
evidence need show only that a person subject to the provisions
of that statute possessed an instrument which was designed,
made, and intended to expel a projectile by means of an
explosion.5    It is not necessary that the Commonwealth prove the
5 We observe that our holding today is consistent with the
decisions of other jurisdictions that have considered this or a
similar issue.    See, e.g., United States v. Adams,  137 F.3d
1298,  1300  (11th Cir.  1998)  (reaching same conclusion with
respect to federal felon in possession of a firearm statute and
noting that all other federal circuits addressing the issue were
in agreement); People v. Brown,  ___ N.W.2d  ___,  ___  (Mich. Ct.
App.  2002)(“a handgun need not be currently operable in order to
qualify as a  ‘firearm’  ” under felon in possession statute);
15




instrument was  “operable,”  “capable” of being fired, or had the
“actual capacity to do serious harm.”    Accordingly, we affirm
the judgment of the Court of Appeals in Armstrong II to overrule
Gregory and Williams, and in limiting the reading of Jones to
any extent that it could be read as being inconsistent with the
opinion expressed in Armstrong II.
Sufficiency of the Evidence
During the oral argument of this appeal, the Commonwealth
conceded that an instrument originally designed, made, and
intended to expel a projectile by force of an explosion could
fall into a state of such significant disrepair or be altered in
such a way that it would cease to be a  “firearm” for purposes of
applying Code  §  18.2-308.2.6    Such a case, however, is not
presented by this appeal.    The evidence that Armstrong’s rifle
was inoperable indicates that it could have been repaired by the
Thomas v. State,  36 S.W.3d  709,  711  (Tex. Ct. App.  2001)  (felon
in possession statute requires only proof of a device designed,
made, or adapted to perform as a firearm, and not that it is
presently capable of firing); State v. Rogers,  494 So.2d  1251,
1254  (La. Ct. App.  1986)  (firearm need not be operable at the
time felon possessed it); State v. Baldwin,  237 S.E.2d  881,  882
(N.C. Ct. App.  1977)  (state need not show weapon was operable).
6 Common sense and experience leave no room for doubt that
an instrument originally designed, made, and intended to expel a
projectile by force of an explosion can lose this characteristic
in many ways such that it would no longer be fairly considered a
firearm.    However, we express no opinion here on the degree of
disrepair or alteration that would cause an instrument to no
longer qualify as a firearm under Code  §  18.2-308.2.
16




adjustment of the spring between the trigger and the hammer or
by adjustment of the firing pin.    As such, the rifle was clearly
not in so serious a state of disrepair that it had lost its
characteristic as an instrument designed, made, and intended to
expel a projectile by means of an explosion.    It is irrelevant
that Armstrong may have lacked the requisite skill to effect the
needed repair or that he might not have been able to render the
rifle immediately operable.7    The evidence was clearly sufficient
to establish that the rifle was designed, made, and intended to
expel a projectile by means of an explosion, and that is all the
Commonwealth need prove to establish that it was a firearm
within the meaning of the statute.    Accordingly, we hold that
the Court of Appeals did not err in affirming Armstrong’s
conviction for having possessed a firearm in violation of Code
§  18.2-308.2.
7 We recognize that in Rogers v. Commonwealth,  14 Va. App.
774,  777-78,  418 S.E.2d  727,  729  (1992), the Court of Appeals
held that a weapon missing a firing pin was a firearm under Code
§  18.2-308.2, since it could be made  “completely operable  .  .  .
after a moment’s delay.”    Similarly, in Timmons,  15 Va. App. at
200-01,  421 S.E.2d at  897, the Court of Appeals stated that an
unloaded weapon can be made ready to function  “on a moment’s
notice” and, thus, was a firearm within the meaning of Code
§  18.2-308.4.    In neither instance, however, was there any doubt
that the instrument in question was not one designed, made, and
intended to expel a projectile by means of an explosion and,
thus, the references to  “a moment’s notice” and  “a moment’s
delay” may be considered dicta.
17




CONCLUSION
For these reasons, the judgment of the Court of Appeals
will be affirmed.    However, we will remand the case to the Court
of Appeals with instructions to remand the case to the trial
court for the sole purpose of correcting, nunc pro tunc, the
clerical error in the trial court’s sentencing order.    See note
1, supra.
Affirmed and remanded.
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