Kenneth Franklin Edwards v. Commonwealth ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Alexandria, Virginia
KENNETH FRANKLIN EDWARDS
MEMORANDUM OPINION* BY
v. Record No. 1960-02-4 JUDGE JAMES W. BENTON, JR.
JANUARY 28, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
John E. Kloch, Judge
Paul E. Pepper, Senior Assistant Public Defender, for appellant.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
The issue raised by this appeal is whether the evidence proved beyond a reasonable doubt
that Kenneth Franklin Edwards carried a concealed weapon in violation of Code § 18.2-308. We
hold that it did.
I.
The evidence proved that Edwards lived in a building, which contained four apartments on
the second level and has one entrance hallway from the street level to the second level. Richard
Rouse lived in an apartment adjacent to Edwards. On December 30, 2000, Edwards’s roommate
moved into Rouse’s apartment and later expressed anger because Edwards moved her furniture into
the hallway.
Before midnight the following day, Edwards joined his friends at a bar and restaurant near
his apartment. Edwards testified that Embry Young, who often visited Rouse’s apartment, rudely
approached him to discuss the conflict Edwards had with Edwards’s former roommate. Edwards
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
testified that when he told Young the conflict did not concern him, Young threatened to “slash
[Edwards’s] throat and throw [him] out the window of the bar.” Edwards testified he rejoined his
friends, had another drink, and left the bar to watch fireworks.
Young testified that he was intoxicated that evening and could not remember everything he
said to Edwards but he recalled saying something to Edwards “about [being] a little rude about
throwing [the roommate’s] stuff out in the hallway.” After his conversation with Edwards, Young
went to another bar and continued to drink until the employees of this bar asked Young to leave.
Rouse, who was in the bar, testified that he left the bar with Young. As Rouse and Young walked
toward Rouse’s apartment, Rouse saw Edwards coming toward them. Rouse testified that Edwards
said, “‘you still want to cut my throat?’” and then “squared off” in front of Young. Rouse testified
that “Young . . . got in a defensive posture himself.” Rouse further testified that Edwards began
“raving . . . ‘do you still want to cut my throat,’” drew a knife from his side near his belt, and
quickly stabbed Young. Edwards then walked away.
Young testified he was so intoxicated that he did not remember having a fight with
Edwards. He only recalled feeling as if he received a punch in the stomach and realizing his jacket
was bloody when Edwards backed away.
Richard Janet, who was with Edwards after the fireworks ended and before the stabbing,
recalled that the weather was cold that evening and Edwards was wearing a jacket. Janet testified
that Edwards wore a dagger on the right side in a sheath, which was visible when “the jacket was
loose . . . [but], if you’re just walking down the street, not really looking, you wouldn’t have seen
[the knife].”
After receiving a report of the stabbing, Officer Steven Escobar went to the apartment
building where Edwards and Rouse lived and he spoke to Rouse. While standing in the hallway and
talking to several residents of the apartments, Officer Escobar saw Edwards running up the stairs of
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the apartment building. When Edwards identified himself, Officer Escobar asked Edwards to put
his hands on the wall. Officer Escobar testified that he frisked Edwards after Edwards removed his
jacket. He testified that he found the knife in Edwards’s right front pants pocket. When asked if
Edwards gave him the knife, the officer testified, “I don’t believe so, no.”
Another resident of the apartment testified that Edwards removed his jacket after the officer
asked Edwards if he had a weapon. She testified that Edwards “pulled the knife out and handed it to
the officer.” Rouse testified that he was “pretty sure [Edwards] gave the officer the knife.”
Edwards testified that he was returning alone to a bar after the fireworks when he saw Rouse
and Young walking toward him. Edwards testified that he said to Rouse, “you need to do
something about your friend, . . . he’s over here threatening me and he comes up to your apartment
all the time and we can’t have this.” Edwards testified that Young angrily came toward him, that he
pushed Young away, and that he noticed Young coming toward him again. Edwards testified that
he obtained his knife in “a natural reflex” because he thought Young intended to fulfill the earlier
threat to “slash his throat.” When the knife went into Young’s body, he pulled it out right away and
went to have “a few drinks.” He testified that the events that occurred when he later returned to his
apartment were “kind of fuzzy.”
The trial judge convicted Edwards of unlawful wounding in violation of Code § 18.2-51 and
carrying a concealed weapon in violation of Code § 18.2-308.2. While this appeal was pending, the
trial judge entered an order nunc pro tunc, correcting the final order to reflect a conviction for a
concealed weapon in violation of Code § 18.2-308(A).
II.
In pertinent part, Code § 18.2-308(A) provides as follows:
If any person carries about his person, hidden from common
observation . . . any dirk, bowie knife, switchblade knife, ballistic
knife, razor, slingshot, spring stick, metal knucks, or blackjack . . .
he shall be guilty of a Class 1 misdemeanor.
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“We have previously [held] that a weapon is hidden from common view under Code
§ 18.2-308(A) when it is ‘hidden from all except those with an unusual or exceptional
opportunity to view it.’” Winston v. Commonwealth, 26 Va. App. 746, 756, 497 S.E.2d 141,
146 (1998) (quoting Main v. Commonwealth, 20 Va. App. 370, 372-73, 457 S.E.2d 400, 402
(1995) (en banc)).
Viewed in the light most favorable to the Commonwealth, Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), the evidence proved Edwards
had a six-inch dagger on his “right side in the sheath” shortly before he encountered Young and
Rouse on the sidewalk. Janet testified that Edwards’s “shirt covered it” and that Edwards was
also wearing a jacket. He further testified as follows:
Q: It was cold out that night, wasn’t it?
A: It was cold.
Q: But the belt, the knife was attached to his belt?
A: Yes.
Q: But you could see it under the jacket?
A: The jacket was loose, you could see it. If you looked, you
know, if you’re just walking down the street, not really looking,
you wouldn’t have seen it.
* * * * * * *
Q: You’ve seen it before?
A: Yes, he carried it with him for quite a few months.
Q: Regularly in that same spot there?
A: Yes sir. Either there or in the jeans pocket.
Q: So but for the jacket, as when you were walking, being open,
it’s safe to say that it would be not visible, is that right?
A: That’s certainly the point. If it was like way up here, you
wouldn’t be able to see it. But normally he wore it like right there.
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Q: . . . To understand your testimony, one thing you said was that
the jacket was open at some point when you saw it.
A: Yes.
Q: The jacket, having been zipped up in the cold, you wouldn’t be
able to see it, is that right?
A: That’s true.
Rouse testified that when Edwards and Young faced each other, Edwards “went into his side” in
the area near his belt, “drew a knife and stabbed [Young].”
From this evidence, the trial judge could have concluded beyond a reasonable doubt that
Edwards was carrying the dagger in a concealed position when he left Janet and approached
Rouse and Young. In addition, the officer’s testimony was sufficient to prove Edwards had
concealed the dagger before he entered the hallway of the apartment building. He saw Edwards
come inside the entrance hallway and described the events as follows:
A: He was running up the stairs. I stopped him . . . . I asked him
if he was Kenneth Edwards. He said that he was. I asked him to
put his hands on the wall. I moved down. I located a weapon, a
knife in his right front pocket. I removed the knife, took it into
custody. I took Mr. Edwards into custody.
Q: You say that you located the knife on him. He did not hand the
knife to you?
A: I don’t believe so, no.
Q: Do you ever remember him taking his coat off or anything to
hand you a weapon?
A: He did remove his jacket, yet.
Q: Was that so you could pat him down?
A: Yes.
Q: When you say a pocket, do you mean like a pants pocket of --
when you say right front pocket, you mean like a pants pocket?
A: Yes.
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The testimony of Rouse and the other resident conflict in part with the officer’s testimony
because they testified that Edwards gave the dagger to the officer. Neither of these witnesses,
however, identified the place from which Edwards retrieved the dagger. In view of Janet’s
testimony that Edwards sometimes carried the dagger in his pants pocket, the trial judge could
have found that the officer’s testimony that the dagger was in Edwards’s pants pocket was
credible. See Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 871 (1998) (noting
that we must give great deference to the fact finder’s ability to assess credibility and weigh
testimony).
Although, as Edwards argues, Code § 18.2-308(B) exempts from the coverage of Code
§ 18.2-308(A) “any person while in his own place of abode or the curtilage thereof,” the trial
judge could have reasonably concluded that the officer saw Edwards when he came from the
public street into the hallway. Thus, the trial judge could infer that the dagger, which was
concealed when the officer searched Edwards, was likewise concealed before Edwards entered
the building.
For these reasons, we affirm the conviction for carrying a concealed weapon in violation
of Code § 18.2-308(A).
Affirmed.
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