Eugene Boone, IV v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, McClanahan and Senior Judge Willis
Argued by teleconference
EUGENE BOONE, IV
MEMORANDUM OPINION * BY
v. Record No. 1371-08-1 JUDGE JERE M.H. WILLIS, JR.
JANUARY 12, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Carl E. Eason, Jr., Judge
Jean Veness, Assistant Public Defender, for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
On appeal from his conviction of possession of explosive material after having been
convicted of a felony, Eugene Boone, IV, contends the trial court erred in finding that he knowingly
and intentionally possessed explosive material.1 Boone argues that the evidence was insufficient to
prove he knew the character or composition of the cartridge found in his pocket. We disagree and
affirm.
Police officers responded to a disturbance call, and an officer looked inside a car. Boone
approached and told the officer he had no right to search the car. The officers arrested Boone on
unrelated charges. Upon a search incident to the arrest, an officer recovered from Boone’s pants
pocket a handgun magazine clip containing six .380 caliber cartridges. Laboratory examination of
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Boone was also convicted of assault and battery of a police officer and resisting arrest.
In his petition for appeal to this Court, Boone challenged the assault and battery conviction. We
denied the petition as to that issue by orders entered February 13, 2009 and April 29, 2009.
one of the cartridges established that it contained smokeless gunpowder. At trial, Boone admitted
he had previously been convicted of a felony.
Code § 18.2-308.2(A) forbids any person who has been convicted of a felony to
knowingly and intentionally possess any explosive material. Code § 18.2-308.2(D) provides in
part, “‘Explosive material’ means any chemical compound mixture, or device, the primary or
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 . . . .” 2
Relying upon Young v. Commonwealth, 275 Va. 587, 659 S.E.2d 308 (2008), Boone
argues that the Commonwealth was required to prove that he had actual knowledge that the
cartridge contained explosive material. In Young, a police officer found in Young’s purse an
OxyContin prescription bottle, containing two blue tablets and six white tablets. Young was
driving her boyfriend’s car, and the prescription bottle indicated that it was issued to her
boyfriend’s niece. The blue tablets were identified as morphine, and the white tablets were
identified as Trazadone. Id. at 589-90, 659 S.E.2d at 309. The Supreme Court held
In a prosecution for possession of a controlled substance,
the Commonwealth must produce evidence sufficient to support a
conclusion beyond a reasonable doubt that the defendant’s
possession of the drug was knowing and intentional. Actual or
constructive possession alone is not sufficient. “The
Commonwealth must also establish that the defendant intentionally
and consciously possessed it with knowledge of its nature and
character.”
Id. at 591, 659 S.E.2d at 310 (quoting Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d
757, 759 (1975)) (citations omitted). In reversing Young’s conviction for possession of
morphine, the Supreme Court held that neither the bottle nor its contents indicated the character
2
In 2009, the statute was amended to include ammunition for a firearm.
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of the pills, that the officer could not determine the nature of the pills without submitting them
for laboratory analysis, and that there was no reason to infer that Young was any better informed.
Id. at 592, 659 S.E.2d at 311. Thus, “[t]he ambiguous circumstantial evidence concerning the
appearance of the bottle and its contents is as consistent with a hypothesis of innocence as it is
with that of guilt.” Id.
We agree with Boone that the Commonwealth was required to prove that he possessed
the cartridge, knowing its explosive character, but disagree that the Commonwealth failed to do
so. A handgun magazine clip with six rounds of ammunition is cognizably different from
unmarked tablets in a prescription bottle. As the trial court held, it is common knowledge that a
firearm cartridge “[is] a device that operate[s] by an explosion, by an internal explosion. That’s
how bullets work.” Boone did not possess a single item that might conceivably be mistaken for a
fake. He possessed a loaded firearm magazine. It is common knowledge that firearm
ammunition is loaded with gunpowder and explodes.
The evidence sufficiently proved and supports the trial court’s finding that Boone
knowingly and intentionally possessed explosive material and was guilty of possession of
explosive material after having been convicted of a felony.
Affirmed.
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McClanahan, J., concurring.
At the time of Boone’s arrest, he was not allowed as a convicted felon to knowingly and
intentionally possess any explosive material, defined as, among other things, “a device, the
primary or common purpose of which is to function by explosion.” Code § 18.2-308.2(A) and
(D). There is no dispute that, when arrested, Boone was in possession of a handgun magazine
clip with six rounds of ammunition, consisting, more specifically, of six .38 caliber Winchester
cartridges. In finding Boone guilty under Code § 18.2-308.2, the trial court determined that a
firearm cartridge “[is] a device that operate[s] by an explosion, by an internal explosion. That’s
how bullets work.” That is, its “common purpose . . . is to function by explosion.” Code
§ 18.2-308.2(D). And this does not change from cartridge to cartridge, unlike, for example, the
character and content of the enumerable kinds of bottles of pills that one may obtain,
distinguishing the facts in this case from those in Young v. Commonwealth, 275 Va. 587, 659
S.E.2d 308 (2008), upon which Boone relies.
Boone’s contention that the Commonwealth failed to prove his guilt because it did not
present any evidence that he “knew the character or composition of the cartridges or that he was
otherwise conversant with the composition of a cartridge,” is without merit. We cannot say, as a
matter of law, that the trial court erred in taking judicial notice of the fact that the common
purpose of a firearm cartridge is to function by explosion. “[A]ny matter may be judicially
noticed if it is commonly known in the jurisdiction or easily ascertainable from reliable sources.”
Charles E. Friend, The Law of Evidence in Virginia § 19-15, at 924 (6th ed. 2006); see, e.g.,
State ex rel. Oil Serv. Co. v. Stark, 122 S.E. 533, 536 (W. Va. 1924) (“The courts take judicial
notice that gasoline and other inflammable petroleum products, gunpowder and dynamite, are
dangerous and explosive, as a matter of common knowledge.” (citations omitted)). Furthermore,
the fact that Boone possessed the cartridges in a firearm magazine was at least circumstantial
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evidence, if not direct evidence, that he knew that the “common purpose” of a cartridge was to
function by explosion—in this case, with a handgun. 3
I therefore concur in affirming Boone’s conviction.
3
As the majority points out, Code § 18.2-308.2 was amended in 2009 to specifically
include ammunition for a firearm as one of the items proscribed under the statute. That does not
necessarily mean that the statute cannot be read to include ammunition within its scope prior to
the amendment. While “a presumption normally arises that a change in law was intended when
new provisions are added to prior legislation by an amendatory act,” a legislative amendment
does from time to time simply “make [a statute] more detailed and specific,” without making any
“changes of substance,” Boyd v. Commonwealth, 216 Va. 16, 20, 215 S.E.2d 915, 918 (1975),
which is, I believe, what transpired with the 2009 amendment to Code § 18.2-308.2.
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