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COURT OF APPEALS OF VIRGINIA
Present:    Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements
and Agee
Argued at Richmond, Virginia
ERIC WAYNE ARMSTRONG
OPINION BY
v.    Record No.  1388-99-3                                            JUDGE G. STEVEN AGEE
JULY  31,  2001
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF HIGHLAND COUNTY
Duncan M. Byrd, Jr., Judge
Ronald W. Vaught for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Eric Wayne Armstrong, appellant, was convicted in a bench
trial of possession of a firearm by a convicted felon, in
violation of Code  §  18.2-308.2.1    He contends the evidence was
insufficient to prove that the object he possessed was a firearm
because it was not "operable."
In an unpublished opinion, a divided panel of this Court
affirmed the conviction.    Armstrong v. Commonwealth, No.
1388-99-3  (Va. Ct. App. Nov.  21,  2000).    However, we stayed the
1 Appellant was also convicted of possession of marijuana,
in violation of Code  §  18.2-250.1, which is not the subject of
this appeal.




mandate of that decision and granted a rehearing en banc.    Upon
rehearing en banc, the stay of the mandate is lifted, and the
judgment of the trial court is affirmed for the reasons set
forth below.
I.
"Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom."    Green v. Commonwealth,
32 Va. App.  438,  442,  528 S.E.2d  187,  189  (2000)  (citing Juares
v. Commonwealth,  26 Va. App.  154,  156,  493 S.E.2d  677,  678
(1997)).
So viewed, the evidence established that during a search of
the appellant's residence on February  12,  1998, Sheriff Herbert
Lightner of Highland County observed what appeared to be a
semi-automatic  .22 caliber rifle and a BB gun inside a gun
cabinet.    The gun cabinet was not opened, and neither gun was
examined.    Neither the rifle nor the BB gun was seized at that
time.
The appellant, who had a prior felony conviction, was later
charged with possession of a firearm by a convicted felon.2    At
the preliminary hearing, defense counsel delivered the two
weapons to the sheriff.    No one test-fired the guns.    At trial,
2 At trial, the Commonwealth did not rely upon the BB gun as
the basis for the firearm conviction.




Sheriff Lightner testified that the  .22 caliber rifle appeared
to be the same weapon he saw at the appellant's house.
Melvin Eugene Armstrong, the appellant's cousin, testified
at trial that the  .22 caliber rifle belonged to him.    Melvin
stated that he purchased the rifle at K-Mart in October  1997 and
produced a receipt from the store with a serial number matching
the number on the rifle.    Melvin, who was in the military at the
time, explained that the rifle "wouldn't fire."    He testified:
"You could pull the trigger but the gun won't go off.  .  .
[T]he firing pin ain't  [sic] hitting the casing so I assume it's
got something to do with the spring in there or the firing pin
one."    He said that while he was out hunting, "it just stopped
shooting."
The appellant did not dispute the existence of his prior
felony conviction or his possession of the rifle.    Instead, he
argued that the rifle was not a "firearm" within the meaning of
Code  §  18.2-308.2 because it was not presently operable:    "If
the gun is not operable, and it's unconditional evidence  .  .  .  ,
then it's not a firearm."
The trial court disagreed and found the appellant guilty of
possession of a firearm by a convicted felon.
II.
On appeal, the appellant concedes that the rifle was
"designed or intended to expel a projectile by discharge or




explosion of gun powder."3    However, he contends the gun was
"inoperable" based upon the "credible, affirmative, and
unrebutted" testimony of Melvin Armstrong.    Accordingly, the
appellant concludes, the evidence was insufficient to sustain
his conviction.
The Commonwealth contends the trial court was free to
disbelieve Melvin Armstrong's testimony that the rifle "wouldn't
fire."    The Commonwealth further argues that Sheriff Lightner's
testimony that he saw the  .22 caliber rifle was sufficient to
convict the appellant of this offense.    We agree with the trial
court's finding but for different reasons than articulated by
it.
Code  §  18.2-308.2, at the time of the offense, provided
that it was unlawful for a previously convicted felon to
"knowingly and intentionally possess or transport any firearm."
The statute does not contain a definition of "firearm."
In Jones v. Commonwealth,  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),
we held:
Code  §  18.2-308.2 prohibits a felon from
possessing a device that has the actual
capacity to do serious harm because of its
ability to expel a projectile by the power
of an explosion, and it is not concerned
with the use or display of a device that may
have the appearance of a firearm.
Therefore, we hold that the term "firearm"
3 The appellant does not contest that he was in possession
of the  .22 caliber rifle.




as used in Code  §  18.2-308.2 is used in its
traditional sense.    The statute does not
seek to protect the public from fear of harm
caused by the display of weapons; rather, it
is concerned with preventing a person, who
is known to have committed a serious crime
in the past, from becoming dangerously
armed, regardless of whether that person
uses, displays, or conceals the firearm.
"It shall be unlawful for any person who has
been convicted of a felony  .  .  . to  .  .  .
possess or transport any firearm or to  .  .  .
carry about his person,  [even if] hid[den]
from common observation, any weapon
described in  §  18.2-308 A."
Id. at  357-58,  429 S.E.2d at  617  (quoting Code  §  18.2-308.2(A)).
Subsequent panel decisions of this Court have enlarged the
holding in Jones, which held that a BB gun was not within the
"traditional definition of a firearm" for purposes of Code
§  18.2-308.2.    In Gregory v. Commonwealth,  28 Va. App.  393,  504
S.E.2d  886  (1998), however, we diverted from the holding in
Jones and required the Commonwealth to prove the following
elements in order to convict a felon for possession of a
firearm:
(1) that the weapon is designed or intended
to expel projectiles by the discharge or
explosion of gunpowder, and  (2) that it is
capable of doing so.
Id. at  400,  504 S.E.2d at  889.    We reiterated these two elements
of required proof in Williams v. Commonwealth,  33 Va. App.  796,
537 S.E.2d  21  (2000).
The Commonwealth must initially prove that
the accused possessed an object manufactured
for the purpose of expelling a projectile by
an explosion, namely, a firearm.    It then




must prove that the firearm is operational
or can readily be made operational.
Id. at  807,  537 S.E.2d at  26  (citation omitted).    In furtherance
of this second element, we explained:
[T]he statute prohibits felons from
possessing actual firearms that are
presently operational or can readily or
easily be made operational or capable of
being fired with minimal effort and
expertise.
Id. at  806-07,  537 S.E.2d at  26.    It is this latter judicially
created element of proof, that the felon's weapon is "presently
operational," that is contrary to the plain language of the
statute and has caused unnecessary confusion.
In the context of related statutes, the ready capability
element has been phrased as "operable" or operable "on a
moment's notice."    Where the firearm, a sawed-off shotgun,
lacked a firing pin in Rogers v. Commonwealth,  14 Va. App.  774,
418 S.E.2d  727  (1992), we held that the gun was close enough to
actual firing capacity to justify a conviction for possession of
the firearm in violation of Code  §  18.2-300  (the Sawed-off
Shotgun Act).    Similarly in Timmons v. Commonwealth,  15 Va. App.
196,  421 S.E.2d  894  (1992), we held that the absence of the
gun's ammunition clip did not deprive the firearm of its status
as operable and, thus, we sustained the defendant's conviction
under Code  §  18.2-308.4  (possession of a firearm while in
possession of cocaine).    Yet, in Williams, we held that the
element of operability was not proven where the convicted




felon's gun was too rusty to fire at the time of his arrest.    We
reversed Williams' conviction for possessing the firearm.               33
Va. App. at  808,  537 S.E.2d at  27.
Contrasted with offenses committed in violation of Code
§  18.2-53.1, the act of firearm possession under Code
§  18.2-308.2  (or related statutes) involves no perception
element by a victim.4    The crime is complete by the felon's
possession of the weapon.    The statute is interpreted in this
fashion to further the legislative intent of keeping firearms
4 Our decisions, as well as those of the Supreme Court of
Virginia, have read the term "firearm," as used in Code
§  18.2-53.1, to include "anything that the victim reasonably
perceives to be a firearm, even though it may not in actuality be
a weapon or be capable of firing a projectile by any means."
Holloman v. Commonwealth,  221 Va.  196,  199,  269 S.E.2d  356,  358
(1980).    Operability or actual capacity of the firearm to fire is
not an element of a violation of Code  §  18.2-53.1, which
prohibits any person  (not just felons) from using a firearm while
committing a felony.    Accordingly, unlike the result in Williams,
we held in Miller v. Commonwealth,  23 Va. App.  208,  475 S.E.2d
828  (1996), that a rusty, inoperable revolver used in a robbery
was a firearm under Code  §  18.2-53.1.    We affirmed the trial
court's finding that the rust on the gun did not affect its
appearance and that the weapon had not "lost its identity as a
firearm."    Id. at  213,  475 S.E.2d at  830.
Jones differentiated a "firearm" in the possession of a
convicted felon under Code  §  18.2-308.2 from a "firearm" used in
the commission of a felony under Code  §  18.2-53.1.    The basis for
the distinction is not whether a weapon "designed or intended to
expel projectiles by the discharge or explosion of gunpowder"
actually works at the time of a felonious act.    Rather, the
distinction is that whatever object is used to perpetrate a
felony  (robbery, for instance) must reasonably create the
perception in the victim of fear of harm.    The victim must
perceive the toy gun as a real firearm in order for the would-be
robber to engender the necessary threat and intimidation to
successfully complete his task and also be guilty of violating
Code  §  18.2-53.1.
It is for this reason that the Supreme Court of Virginia in
Holloman held the use of a BB gun, while not within the
traditional definition of a firearm, was a "firearm" in the
reasonable perception of the victim of a robbery and, therefore,




out of the hands of convicted felons.    Jones concisely sets out
the General Assembly's intent in adopting Code  §  18.2-308.2:
[I]t is concerned with preventing a person,
who is known to have committed a serious
crime in the past, from becoming dangerously
armed, regardless of whether that person
uses, displays, or conceals the firearm.
16 Va. App. at  358,  429 S.E.2d at  617.
Nothing in this statement of policy, or in the plain
language of the statute, bifurcates convicted felons with
firearms into classes of those  (1) possessing firearms ready to
fire immediately, or  (2) possessing firearms which can fire with
some repairs or adjustments.
Further, because there is no victim perception element to
Code  §  18.2-308.2, as there is under Code  §  18.2-53.1, there is
no public policy or legislative intent to find a felon who
possesses a BB gun, a squirt gun or a plastic toy gun to be in
possession of a firearm.    That is all the Jones decision held.
When the General Assembly used the term "firearm" in Code
§  18.2-308.2, it meant a "firearm" is a firearm under that
statute if it was made to shoot bullets, not BBs or tap water.
Had later interpretations of Jones limited the holding to
devices such as toy weapons, squirt guns or BB guns, those
decisions may not have run afoul of the plain meaning of the
statute or created the byzantine network of decisions which has
was a firearm for purposes of Code  §  18.2-53.1.                     221 Va. at  198,
269 S.E.2d at  358.




since evolved.    The aftermath of Jones has seen creative
findings of circumstantial proof with regard to the operability
of the accused felon's firearm which are not only difficult to
reconcile, but also provide little guidance to the trial courts.
For instance, in Redd v. Commonwealth,  29 Va. App.  256,  511
S.E.2d  436  (1999), no gun was seized from Redd or produced at
her trial for possession of a firearm by a previously convicted
felon.    Nonetheless, Redd's threat to kill the clerk and her
placing a "long black gun" on the store counter was sufficient
to justify the inference that the object was an operable
firearm.    In Taylor v. Commonwealth,  33 Va. App.  735,  536 S.E.2d
922  (2000), a case under Code  §  18.2-308.4, the defendant's
exposure of a firearm tucked in his waistband was sufficient to
permit the inference that it was a functional, operational
firearm and sustain a conviction.    As a corollary, decisions
such as Rogers, Timmons, Gregory and Williams reflect a highly
subjective approach in determining whether a felon's gun, which
is in evidence at trial, is sufficiently close to firing status
to justify a conviction.
Code  §  18.2-308.2 prohibits a convicted felon "to knowingly
and intentionally possess or transport any firearm."                    (Emphasis
added).    While the statute does not define firearm, the adjacent
"instant check" statute, Code  §  18.2-308.2:2, provides "firearm
means any handgun, shotgun or rifle which expels a projectile by
action of an explosion."    Similarly, the plain dictionary




meaning of "firearm" is:    "A weapon that expels a projectile
(such as a bullet or pellets) by the combustion of gunpowder or
other explosive."    Black's Law Dictionary  648  (7th ed.  1999).
Nothing in these or similar definitions bifurcates firearms into
actual operational and not fully functional categories.
The application of Jones in subsequent cases has created a
body of law that is contrary to the plain meaning of the statute
and attributes a legislative intent where none exists.    The
practical result of the "operability" element has left a
confusing zigzag trail for the trial courts to decipher.    This
is particularly apparent in decisions like Redd and Taylor where
no gun is in evidence and there is no direct evidence as to
whether the weapon functions, but an inference of operability
may be drawn.    For instance, if, in Redd, the only action of the
accused had been to place the weapon on the store counter
without a verbal threat, could an inference of operability
properly be drawn?
Even in cases where the gun is introduced into evidence,
the question of operability engenders innumerable scenarios as
to when or if the weapon could become operable or capable of
firing.    Did the legislature intend there to be a time test,
under Code  §  18.2-308.2, on the felon's personal ability to make
the weapon operable?    If the weapon required more than the
insertion of the firing pin or ammunition clip, would the
weapon's operability be judged by the felon's ability to make




the weapon fire, his access to contacts who could perform that
function or his financial ability to retain a gunsmith who could
timely do so?    Would the felon be required to be able to make
the weapon operable within a given time period  (ten minutes or
ten hours)?    It cannot be said that the General Assembly
"intended" such a test where the clear and unambiguous meaning
of the statute is to prohibit a felon from possessing any
firearm.
When the legislature has spoken plainly
courts may not change or amend legislative
enactments under the guise of construing
them.    The province of construction lies
wholly within the domain of ambiguity.
There is no ambiguity in the language that
forbids a convicted felon to carry a
firearm.    That which is plain needs no
interpretation.    Winston v. City of
Richmond,  196 Va.  403,  407-08,  83 S.E.2d
728,  731  (1954).
Jones,  16 Va. App. at  358,  429 S.E.2d at  617.
The 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" or whether a can
of WD-40 or the local gunsmith could render the firearm fully
functional.
In 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.    When enacting Code  §  18.2-308.2, the
General Assembly's intent was clear:    A felon cannot possess any
firearm.    Had the legislature wished to draw a distinction
between operable and inoperable firearms, it would have done so
with clear and distinct language.    It did not, and neither did
Jones.    The reference in Jones to a firearm's "actual capacity
to do serious harm" relates to "a weapon designed or intended to
expel projectiles by the discharge or explosion of gunpowder"
not to a separate requirement of operability.
As the foregoing reflects, we have made a detailed inquiry
finding "a mistake exists in our prior decisions."    Accordingly,
we exercise the clear authority under Code  §  17.1-402(D) to
overrule those decisions.
We overrule Gregory and Williams to the extent such cases
are read to require the Commonwealth to prove as an element of
violating Code  §  18.2-308.2 that the convicted felon's firearm
was presently operational, was capable of being fired, could be
readily converted to firing or could readily be made
operational.5    We hold Jones established no such requirement.    To
the extent Jones is read inconsistently with this opinion, Jones
is also overruled.
5 The same rule shall apply in prosecutions under Code
§§  18.2-300 and  18.2-304.4 so that no proof of operability of
the sawed-off shotgun, sawed-off rifle or firearm, as
applicable, shall be required.




The dissent's inference that the United States
Constitution's ex post facto protection is somehow implicated by
our decision is inaccurate.    None of the cases cited stand for
that proposition, particularly where a prior panel decision is
overruled en banc on the basis of clear error in application of
a statute.    Moreover, the appellant's conviction in the case at
bar is based on acts committed prior to the decisions in Gregory
and Williams.
Code  §  18.2-308.2 only requires the Commonwealth to prove,
as elements of the crime, that the accused is a convicted felon
and that he or she possessed an object which was made with the
purpose to expel a projectile by gunpowder or other explosion.
In the case at bar, the Commonwealth proved these elements at
trial and, therefore, the appellant's conviction is affirmed.
Affirmed.




Benton, J., dissenting.
Applying Code  §  18.2-308.2, a panel of this Court in Jones
v. Commonwealth,  16 Va. App.  354,  429 S.E.2d  615  (1993), noted
that "[t]he legislature has assigned various meanings to the
term 'firearm' in  [different] sections of Title  18.2," id. at
356,  429 S.E.2d at  615-16, and concluded that "whether the term
'firearm' when used in a statute without being defined is to be
given its traditional meaning or a more expansive meaning
depends upon the purpose and policy underlying the particular
statute."    Id. at  357,  429 S.E.2d at  616.    Based upon a review
of the various statutes, the decision further concluded as
follows:
[W]hen a statute is designed only to
proscribe the act of possessing a firearm or
the conduct of a felon in order to reduce a
real threat of harm to the public, a
narrower, more traditional definition of
"firearm" is required.    See Timmons v.
Commonwealth,  15 Va. App.  196,  200-01,  421
S.E.2d  894,  897  (1992)  ("firearm" under
statute penalizing the possession of a
firearm while in possession of cocaine does
not include "'any object' that  [appears to
have] capability of firing a projectile,
even if it lacks that capability").
Id.
It was in the context of a review of all the firearm
statutes that Jones construed the term "firearm" in Code
§  18.2-308.2 and held the following:
Code  §  18.2-308.2 prohibits a felon from
possessing a device that has the actual
capacity to do serious harm because of its




ability to expel a projectile by the power
of an explosion, and it is not concerned
with the use or display of a device that may
have the appearance of a firearm.
Therefore, we hold that the term "firearm"
as used in Code  §  18.2-308.2 is used in its
traditional sense.    The statute does not
seek to protect the public from fear of harm
caused by the display of weapons; rather, it
is concerned with preventing a person, who
is known to have committed a serious crime
in the past, from becoming dangerously
armed, regardless of whether that person
uses, displays, or conceals the firearm.
Id. at  357-58,  429 S.E.2d at  617  (emphasis added).    We affirmed
that decision en banc.    Jones v. Commonwealth,  17 Va. App.  233,
436 S.E.2d  192  (1993)  (en banc).
In the eight years since Jones, neither the Supreme Court
nor the legislature has reviewed or changed the definition of
firearm that Jones applied to Code  §  18.2-308.2.    Indeed,
because the General Assembly has revised the firearm statutes on
several occasions without any indication that it has disagreed
with our definition, "the General Assembly is presumed to use
the language as judicially defined."    Williams v. Fairfax Co.
Hous. Auth.,  227 Va.  309,  314,  315 S.E.2d  202,  205  (1984).    See
also Burns v. Stafford County,  227 Va.  354,  360,  315 S.E.2d  856,
860  (1984).
Our decisions in Williams v. Commonwealth,  33 Va. App.  796,
537 S.E.2d  21  (2000), and Gregory v. Commonwealth,  28 Va. App.
393,  504 S.E.2d  886  (1998), have been faithful to the definition
of firearm that we used in Jones and based on the construction




of the statutes.    The decision in Williams particularly and
thoroughly analyzed Jones and the cases that followed Jones in
determining the type of weapon which is proscribed by Code
§  18.2-308.2.    See  33 Va. App. at  800-08,  537 S.E.2d at  23-27.
The majority now interprets Code  §  18.2-308.2 to require
"only  [that]  .  .  . the Commonwealth  .  .  . prove, as elements of
the crime, that the accused is a convicted felon and that he or
she possessed an object which was made with the purpose to expel
a projectile by gunpowder or other explosion."    Although the
majority professes to follow Jones, it has eliminated the
significant element of that decision's holding, the "actual
capacity" of the firearm to operate.    Simply put, the majority
opinion has re-defined the term "firearm" as used in statutes we
analyzed in Williams, Gregory, and Jones.
Regardless of whether the majority overrules Jones and its
progeny or merely overrules Williams and Gregory, the majority
makes no clear "inquiry  .  .  . whether flagrant error or mistake
exists in the  [prior] decision[s]."    Pulliam v. Coastal
Emergency Servs.,  257 Va.  1,  10,  509 S.E.2d  307,  312  (1999).
Those decisions have stood "without any indication to the bench,
the bar, or the public that flagrant error or mistake exists in
the decision[s]."    Id. at  25,  509 S.E.2d at  321.    Indeed, the
Commonwealth in this case does not challenge the definition of
"firearm" enunciated in Jones, Williams, and Gregory.    These
factors indicate that the principle needs no revision.




Furthermore, the majority has chosen to jettison precedent, not
in a tort or contract case involving the payment or non-payment
of money to a party, but in a criminal case involving the
liberty of a citizen of the Commonwealth.
Although, strictly speaking, judicial decisions do not
implicate the Ex Post Facto Clause of the United States
Constitution, see United States v. Wasserman,  504 F.2d  1012,
1015  (5th Cir.  1974)  (citing James v. United States,  366 U.S.
213,  247-48  (1961)  (separate opinion of JJ. Harlan and
Frankfurter)), the same considerations bind the judiciary.
Indeed, the United States Supreme Court has held as follows:
[A]n unforeseeable judicial enlargement of a
criminal statute, applied retroactively,
operates precisely like an ex post facto
law, such as Art. I,  §  10, of the
Constitution forbids.    An ex post facto law
has been defined by this Court as one 'that
makes an action done before the passing of
the law, and which was innocent when done,
criminal; and punishes such action,' or
'that aggravates a crime, or makes it
greater than it was, when committed.'    If a
state legislature is barred by the Ex Post
Facto Clause from passing such a law, it
must follow that a State Supreme Court is
barred by the Due Process Clause from
achieving precisely the same result by
judicial construction.
Bouie v. City of Columbia,  378 U.S.  347,  353  (1964)  (citation
omitted).
Prior to today's decision, the Commonwealth had to prove
two discrete elements to demonstrate the existence of a firearm
to convict an accused under Code  §  18.2-308.2.    Gregory,  28 Va.




App. at  400,  504 S.E.2d at  889.    With the majority opinion's
elimination of the "actual capacity" requirement from Jones, the
Commonwealth will only have to prove one element.    Such a
radical lowering of the threshold for conviction changes the
nature of the conduct proscribed and punishes conduct that was
legal before the publication of the current opinion.    As such,
at the very least, it cannot apply in this case, where the
evidence was insufficient to convict Armstrong under our prior
interpretation of this statute.    As stated in the dissent from
the panel decision, "the Commonwealth failed to prove that 'the
weapon could be readily rendered functional.'"    Armstrong v.
Commonwealth, No.  1388-99-3  (Va. Ct. App. Nov.  21,  2000)
(quoting Williams,  33 Va. App. at  808,  537 S.E.2d at  27).
Therefore, because the Commonwealth did not bear its burden of
proof, we should reverse the conviction.
In conclusion, I believe that Jones and its progeny
properly construed Code  §  18.2-308.2 and that today's majority's
view, which was not advanced on brief by either party,
represents merely another way of looking at the same issue we
previously decided.    Its only compelling feature is that it has
garnered a sufficient number of votes to overrule our prior
decisions.
For these reasons, I would reverse the conviction.    I
dissent.

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