Flanagan v. Commonwealth
58 Va. App. 681
Va. Ct. App.2011Background
- Flanagan operated a business manufacturing 1920s-style iceboxes; two employees quit citing presence of explosive materials.
- Employees Emmons and Padgett testified that explosive materials were present and that appellant discussed making bombs.
- FBI/State authorities executed a later search; in a cabinet they found acetone peroxide (TATP), a fuse, straws, and a pistol; he admitted using acetone and sulfuric acid for business but hydrogen peroxide was for manufacturing explosives.
- Appellant claimed TATP was for scientific/educational purposes and for lawful experimentation; trial included expert testimony on TATP volatility.
- Second trial (March 2010) followed a mistrial from 2009; jury ultimately convicted of possessing/manufacturing explosive materials or devices under Code § 18.2-85, and imposed a fine.
- Appellant timely appealed asserting vagueness of Code § 18.2-85, due process shifting the burden to prove lawful purpose, and denial of motions to strike evidence; trial court denied relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Code § 18.2-85 is unconstitutionally vague | Flanagan argues vagueness; lacked preserved objection. | Commonwealth argues affirmative defense under statute. | Vagueness but not preserved; not reached on merits. |
| Whether the last clause of Code § 18.2-85 shifts burden to defendant | Burden shifted to show lawful/educational purpose. | Statutory defense; burden on accused to prove exemptions. | Last clause is a statutory defense; no due process violation. |
| Whether trial court properly denied motions to strike the evidence | Evidence insufficient to prove unlawful purpose. | Evidence shows prohibited materials; fireworks exception not applicable. | Evidence sufficient; denials affirmed. |
Key Cases Cited
- Archer v. Commonwealth, 26 Va.App. 1 (1997) (review of evidence in light most favorable to Commonwealth)
- Elliott v. Commonwealth, 267 Va. 396 (2004) (aborted trial rulings not binding on retrial absent adoption; preservation rule)
- Mayhew v. Commonwealth, 20 Va.App. 484 (1995) (elements vs. exemptions; approach to statutory defense)
- Regular Veterans Ass'n, Ladies Auxiliary v. Commonwealth, 18 Va.App. 683 (1994) (exemption as defense when facts peculiarly within defendant’s knowledge)
- Goble v. Commonwealth, 57 Va.App. 137 (2010) (exemption not a required element; burden on defendant to raise it)