One of the more interesting Virginia cases of the past year had to be  Green v. Commonwealth, handed down by the Court of Appeals (read it here: http://www.courts.state.va.us/opinions/opncavwp/0771092.pdf).  In it, the Court examined what items are “weapons” for the purpose of Virginia’s concealed carry statute, §18.2-308(A) (read it here, and the first paragraph only:  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308).  The case brings to light a strange loophole created by this statute. 

First, the facts:  The police stopped the defendant (Green) because he matched the descriptions on several outstanding warrants.  After detaining him, officers found “a knife, most closely resembling a kitchen knife” in the defendant’s waistband.  The defendant told the officer that he had the knife “for protection.”  Defendant was also a convicted felon and, because of that, he was arrested for possession of a concealed weapon by a convicted felon.

At trial, the Commonwealth presented, as its evidence, the knife and the defendant’s statement that he had the knife for protection.  The defendant testified that he carried the knife to shuck clams and denied his statement that he carried the knife to protect himself.

The judge, finding for the Commonwealth, stated that while the knife was “not much of a kitchen knife, much of a dirk, or much of a bowie knife…it does appear to be an item of…like kind to a bowie knife or a dirk, even though it has one [sharp] edge.”  By finding that the knife was a weapon “of like kind” to a bowie knife or a dirk, the judge brought the steak knife under the ambit of the statute.  And, along with the defendant’s statement that the knife was for protection, the court found the defendant guilty of possession of a concealed weapon by a convicted felon. 

The Court of Appeals overturned the judge, finding that the knife was not a “weapon” under the statute.  The Court applied, articulated by the Supreme Court in Farrakhan v. Commonwealth, paraphrased as follows:  If the bladed item in evidence matches one enumerated in the statute, then the evidence would sustain the charge (so, if the bladed item is a dirk, bowie knife, switchblade knife, ballistic knife, machete, or a razor, it is sufficient evidence).  If it not one of these, then the court must determine whether the item is designed for combat or commonly understood to be used for combat, which would make it a weapon.  Only if the court finds that the item is a weapon may it continue to determine whether that weapon is “one of like kind,” as the lower court found the kitchen knife to be.

The Court of Appeals then cited two cases tending to show that the kitchen knife, in this case, was not a weapon.  In the first, Thompson v. Commonwealth, 277 Va. 280 (2009), the court found that a butterfly knife fit the definition of a “weapon” based upon testimony, by the complaining police officer, that the design and prevalence of the item (thus fulfilling the “commonly understood” aspect) make it a “weapon” under §18.2-308.

The second case cited by the Court, another recent decision in McMillian v. Commonwealth, dealt with a scuba knife.  The facts were much the same as Thompson and as here, except that the testifying officer did not explain how the knife could be a weapon.  Because he did not, the Court of Appeals found that the Commonwealth had not adduced sufficient evidence to support the conviction and reversed it. 

Well, as presented above, the Commonwealth in Green likewise did not introduce such testimony.  According to McMillan, then, the Court of Appeals found the record to be devoid of any facts on which one could find that the knife could be commonly understood to be a weapon.   The Court went on to state that neither the appellant’s own statement, that he carried the knife “for protection,” nor the fact the knife would be dangerous in the hands of someone with criminal intent brought the steak knife into the purview of the statute. 

This case brings to light a loophole created by §18.2-308 and widened by the way in which the courts have applied it.  The problem lies in the few, specific weapons the statute bans:  dirks, bowie knives, switchblades, ballistic knives, machetes, and razors.  This leaves out screwdrivers, utility knives, scissors, scuba knives, kitchen knives, steak knives, throwing knives (the statute only bans thrown weapons with two bladed points), large pocketknives, large Swiss Army knives, umbrella knives and swords (as seen in “The Avengers,”  but they do exist), and regular long knives.  And that’s just all the knife-like weapons I could think of in one minute.

Certainly all of these items are dangerous.  Certainly all of them are adaptable as a weapon. But in order to withstand appeal, the Commonwealth must adduce the sufficient evidence that any one of them is designed as a weapon or commonly understood to be a weapon.  In Green, the judge, in his ruling, inferred that the steak knife was a weapon, most likely in that the steak knife was, well, a knife, and then determined it to be of like kind to a bowie knife.  The Court said as much when it stated that “the trial court must provide a basis for its determination that an item is a weapon, before it can determine that it is a weapon of like kind.” 

What might that testimony have been?  The Court did not venture to say, but it might have been something as simple as police testimony that stabbings involving similar weapons are not infrequent, and that, without other alternatives, suspects arm themselves with whatever is handy. 

But consider also, that neither the defendant’s purpose for nor use of the item is evidence that the item is a weapon.  So, were someone to brandish a scuba knife (which after a little research, turns out to be a cruel looking instrument) and threaten another person, neither fact would count towards whether the scuba-knife-wielder could be convicted of concealing it.  This seems discordant when drawn against the fact that a candy bar, in your pocket, is legally considered a pistol if someone reasonably believes that it is. 

I should say that, as a defense attorney, I am not saying that I argue with the result in this case, which I feel was the proper application of the statute. But the definition of a weapon, in Green, seems too stringent.  Legally, a kitchen knife can’t become a “weapon” until it’s used as against someone, and perhaps not even then.