VIRGINIA EXILE

I. Possession of Firearms by Convicted Felons (§18. 2-308 I. Possession of Firearms by Convicted Felons (§18.2-308.2 – Class 6 felony) A.     Elements of the crime 1. Convicted Felon – Any person who: a.      Has been convicted of a felony, or who has ever been “adjudicated delinquent” while age 14 or > of murder, rape, kidnapping or armed robbery OR b.    While under the age of 29, 1) Was previously found guilty of a “delinquent act” while age 14 or > which would be a felony if committed by an adult. 2. Possesses or Transports a Firearm, etc. a. Knowingly and intentionally possess or transport any of the following items: OR 1) Firearm 2) Stun Weapon (defined in § 18.2-308.1) 3) Taser (defined in § 18.2-308.1); OR 4) Any explosive material (18.2- § 308.2 D)

2. Possession or Transportation of a Firearm, etc. b.         Knowingly and intentionally carry about his person, hidden from common observation: 1) Any weapon listed in Section A of § 18.2-308:                   (i) any pistol, revolver, or other weapon designed or intended to propel a missile of any kind through combustible material (ii) any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, springstick, metalknucks, or blackjack. razor, blackjack, etc. (iii) any flailing instrument consisting of 2 or more rigid parts (nun chucks, fighting chains, etc.) (iv) any disk, of whatever configuration, having at least 2 pointed blades designed to be thrown; or (v) any weapon of like kind as those above.

Definitions Stun Weapon – § 18.2-308.1 “Any mechanism that is (i) is designed to emit an electronic, magnetic or other type of type of charge that exceeds the equivalency of a five milliamp 60 hertz shock and (ii) used for the purpose of temporarily incapacitating a person.” Taser – § 18.2-308.1 “Any mechanism that is (i) is designed to emit an electronic, magnetic or other type of type of charge or shock through use of a projectile and (ii) used for the purpose of temporarily incapacitating a person.” Explosive material - § 18.2-308.2 (D): “Any chemical compound, mixture, or device, the primary of common purpose of which is to function by explosion; the term includes, but is not limited to, dynamite and other high explosives, black powder, pellet powder, smokeless gun powder, detonators, blasting caps and detonating cord, but shall NOT include fireworks or permissible fireworks as defined in Va. Code 27-95.”

I. Possession of Firearms by Convicted Felons (§ 18. 2-308 I. Possession of Firearms by Convicted Felons (§ 18.2-308.2 – Class 6 felony) A.     Punishment: 1. Prior violent felons who possess FIREARMS get a mandatory minimum FIVE (5) YEARS. a.What’s a violent felony? See next slide. 2. All other felons who possess FIREARMS: a. Mandatory minimum TWO (2) YEARS if their prior felony conviction is less than 10 years old. b. No mandatory time if prior felony is > 10 years old. 3. Everyone else (i.e. some weapon other than a firearm) gets treated like any other Class 6 felony – which means they can get up to five years, but its up to the judge.

What are the violent felonies? When in doubt, review § 17.1-805(C). Some examples: Murder, solicitation to commit murder, voluntary manslaughter, aggravated involuntary manslaughter, lynching, mob malicious wounding, terrorism offenses, abduction, various malicious or unlawful wounding offenses, aggravated malicious wounding, use of a firearm while in commission of a felony, felony domestic assault, robbery, carjacking, rape, carnal knowledge, forcible sodomy, aggravated sexual battery, third offense sexual battery, attempted rape, sodomy, aggravated sexual battery, etc., arson, burglary, prior Exile convictions or felony convictions for carrying firearms on school property, felony brandishing of firearm on school property, possession of a sawed-off shotgun, taking indecent liberties with a child (felony), felony child neglect (section A), possession or production of child pornography.

What is a Firearm? A firearm is “an instrument which was designed, made, and intended to expel a projectile by means of an explosion.” Kingsbur v. Commonwealth, 267 Va. 348, 351, 593 S.E.2d 208 (2004); Armstrong v. Commonwealth, 263 Va. 573, 585, 562 S.E.2d 139, 146 (2002). - A BB gun does not use an explosion and is not a firearm. Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993). It is not necessary to prove that the instrument is “operable,” “capable” of being fired, or has the “actual capacity to do serious harm.” Kingsbur v. Commonwealth, 267 Va. 348, 351, 593 S.E.2d 208 (2004); Armstrong v. Commonwealth, 263 Va. 573, 585, 562 S.E.2d 139, 146 (2002). - Automatic pistol, for which lab report indicates that the pistol “does not function and could not be test fired,” and is missing ten parts, is still a firearm because it has not lost its characteristic as “an instrument designed, made and intended to expel a projectile.” . Kingsbur v. Commonwealth, 267 Va. 348, 351, 593 S.E.2d 208 (2004). - .22 caliber rifle that is inoperable due to needing adjustments of the spring between the trigger and the hammer and/or by adjusting the firing pin has not lost its characteristic as “an instrument designed, made and intended to expel a projectile.” Armstrong v. Commonwealth, 263 Va. 573, 585, 562 S.E.2d 139, 146 (2002).

What is a Firearm? So why do we test the weapon? “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.” Armstrong v. Commonwealth, 263 Va. 573, 584, n.6, 562 S.E.2d 139, n.6 (2002).

Evidence Collection 1. DNA – Gloves and search warrant for defendant’s DNA. a. The lab will do it for you, and then do the prints. 2. Photograph the loca6tion where you seize the firearm, where practical and safe to do so. 3. Fingerprints when appropriate. Sometimes it works, usually on the clip. a. Time is important because most fingerprints are made of 90% moisture. b. Wear gloves when practical and safe to do so. 4. Consider the other evidence you need to prove the place where you seized the firearm is in the control of the defendant(s). a. What else is located with the gun? Clothing? Personal items?

II. Possession of Firearms While in Possession of Schedule I or II Drugs (§18.2-308.4) A.     Possession of drugs and firearms: 1. Elements of the crime: a.      Possession of a schedule I or II controlled substance; and b.    Simultaneous possession of any firearm (not on or about his person). 2. Punishment – Class 6 Felony B. Possession of drugs and firearms on or about his person b.    Simultaneous possession of any firearm on or about his person. 2. Punishment – Class 6 Felony – Mandatory minimum 2 years.   C. Possess or use firearm while distributing, attempting to distribute, or possessing with intent to distribute drugs. See next slide.

II. Possession of Firearms While in Possession of Schedule I or II Drugs (§18.2-308.4) C.      Possess or use firearm while distributing, attempting to distribute, or possessing with intent to distribute drugs: 1. Elements of the crime: a.      Firearm - Possess, use, or attempt to use: 1) Any pistol, shotgun, rifle or other firearm; 2) Or display such weapon in a threatening manner b.    Drugs – While committing or attempting to: 1) Manufacture, sell, distribute or possess with intent to distribute 2) Any Schedule I or II controlled substance, or more than one pound of marijuana 2. Punishment – Mandatory minimum 5 years.

II. Possession of Firearms While in Possession of Schedule I or II Drugs (§18.2-308.4) “Actual possession of both the firearm and the controlled substance is not required under subsection (A) of Va. Code § 18.2-308.4. Constructive possession of either or both is sufficient. To support a conviction based upon constructive possession, the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the defendant (1) was aware of both the presence and character of the substance and (2) that it was subject to his dominion and control.” Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414 S.E.2d 860 (1992)(defendant convicted of (1) possession of cocaine with intent to distribute and (2) Va. Code § 18.2-308.4 (A)). There was no Section C in 1992. The Commonwealth presented the following evidence in this search warrant case: 1. The defendant was stopped in the hallway walking out of a bedroom of his girlfriend’s home. Evidence showed he stayed at the home several nights a week. 2. Under the bed, police found a set of scales on a piece of glass and a metal lockbox containing $2000. The money was intermingled with the defendant’s personal papers and paycheck stubs. 3. Police found cocaine and a .32 cal. revolver in the bedroom closet (firearm directly above the cocaine). Girlfriend testified they were his. “The evidence supports the conclusion that Jefferson knew of the presence and character of the gun and the cocaine found in the closet and that he consciously possessed them. The Commonwealth need not prove that Jefferson had ready access to either the gun or the cocaine to establish ‘simultaneous possession.’”

Possession of Firearms While in Possession of Schedule I or II Drugs (§18.2-308.4) McCain v. Commonwealth, 261 Va. 483, 545 S.E.2d 541 (2001): Sufficient evidence for conviction of what is now Subsection C – Possessing a firearm while possessing cocaine with intent to distribute - (when this case took place, it was subsection B; the current subsection B was added to the statute in 2003): 1. Defendant, driver, gives police permission to search his car. 2. Officer asks defendant and passenger to step out of the car. 3. Officer pats down passenger for his safety. 4. While he’s doing that, driver walks behind a decorative concrete wall. At this point, no indication driver possesses anything. 5. Officer sees shadow of an arm reach out in an area located behind the wall, where a grocery cart is located. 6. Officer hears the sound of a metal object hitting another metal object. 7. No one else was present in area where grocery cart was located. 8. Officer walks around wall and finds pistol in grocery cart. 9. Defendant runs. Officer stops and arrests him for concealed weapon. 10. Search incident to arrest: 5 grams of crack cocaine, $937 in cash. 11. Inventory search of car incident to arrest: pager, cellular telephone, scales, plastic bag containing two, large blocks of individually wrapped cocaine, combined weight 55 grams. 12. Sufficient evidence for (1) possessing of cocaine with intent to distribute, and for (2) possessing a firearm while possessing cocaine with intent to distribute.

III. Possession of Firearm, Stun Weapon or other Weapon on School Property (§ 18.2-308.1) A.     Possession of Weapon While On School Property (Class 1 Misdemeanor) 1. Possession of a Weapon: a.      Stun weapon or taser (see definitions) b.    Knife, except folding pocket knife less than 3 inches c. Any weapon listed in § 18.2-308, Section A 2. On School Property. a. Any public, private, or parochial elementary, middle or high school, including buildings and grounds; b. That portion of any property open to the public used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; OR c. Any school bus owned or operated by any such school.

III. Possession of Firearm, Stun Weapon or other Weapon on School Property (§ 18.2-308.1) B.     Possession of Firearm While On School Property (Class 6 Felony) 1. Possession of a Firearm 2. On School Property. a. Any public, private, or parochial elementary, middle or high school, including buildings and grounds; b. That portion of any property open to the public used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; OR c. Any school bus owned or operated by any such school.

III. Possession of Firearm, Stun Weapon or other Weapon on School Property (§ 18.2-308.1) B.     Enhanced Mandatory Minimum Five (5) Years when: 1. Possession of a Firearm 2. Within any public, private, or parochial elementary, middle or high school building; and 3. Intends to use, or attempts to use such firearm, OR displays such weapon (why didn’t they just use the word firearm again?) in a threatening manner. Example: Brandishing a firearm inside a school building. Question: What do they mean by “intending to use” it? Intending to shoot it? Intending to brandish it? Intending to pistol whip someone with it? Shooting and brandishing are a fairly obvious yes. Not much case law yet. This provision was added in 1999.

Possession of Firearm or other Weapon on School Property Exemptions: The same exemptions that apply in 18.2-308 (carrying a concealed weapon). PLUS: (i) persons who possess such weapon or weapons as a part of the school's curriculum or activities; (ii) a person possessing a knife customarily used for food preparation or service and using it for such purpose; (iii) persons who possess such weapon or weapons as a part of any program sponsored or facilitated by either the school or any organization authorized by the school to conduct its programs either on or off the school premises; (iv) any law-enforcement officer; (v) any person who possesses a knife or blade which he uses customarily in his trade; (vi) a person who possesses an unloaded firearm that is in a closed container, or a knife having a metal blade, in or upon a motor vehicle, or an unloaded shotgun or rifle in a firearms rack in or upon a motor vehicle; or (vii) a person who has a valid concealed handgun permit and possesses a concealed handgun while in a motor vehicle in a parking lot, traffic circle, or other means of vehicular ingress or egress to the school. For the purposes of this paragraph, "weapon" includes a knife having a metal blade of three inches or longer and "closed container" includes a locked vehicle trunk.

EXILE STATISTICS 2004 EXILE ARRESTS: 65 2004 EXILE CONVICTIONS: 43 Firearm by Felon = 37 Firearm with Drugs = 8 (2 defendants convicted of both) 2005 EXILE ARRESTS: 79 (As of 8/15/05) 2005 PENDING CASES: 73 (Some carried over from 2004) Firearm by Felon = 44 Firearm and Drugs= 21 (7 defendants charged with both) Firearm on School Property: 1