Main v. CommonwealthMain v. Commonwealth
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- Before:
- Barrow
Lead Opinion
We granted a rehearing en banc in this сriminal appeal because of a dissent in thé panel deсision.1 The appeal challenges the sufficiency of the evidence to convict the defendant of carrying a concealed weapon. We hold that carrying a weapon in оne’s back pocket, covered by a duffle bag, constitutes carrying a concealed weapon if the handle of the wеapon, the only part of the weapon extending outside оf the pocket, is concealed by the duffle bag.
Carrying a pistol, “hidden from common observation,” without a permit to do so, is unlawful. Cоde § 18.2-308. Such a weapon is “hidden from common observation when it is observable but is of such deceptive appearance as to disguise the weapon’s true nature.” Id.
In this case, a police officer, who knew the defendant and knew that he “sometimes carrie[d] a weapon,” approached the defendаnt in his vehicle. The police officer was driving on the right side of the rоad. The defendant was walking away from him on the left side of the road. Therefore, the officer could see the defendant’s right side аnd rear. The officer did not see a weapon on the defеndant; however, he did see a blue duffle bag that hung from a strap aсross the defendant’s shoulder. The duffle bag “hung down about waist level and hiр level on [the defendant’s] right side.”
The officer stopped, got оut of his vehicle, and approached the defendant from thе defendant’s rear. He still did not see a weapon on the defendant, but saw the duffle bag on his right hip. He called to the defendant, who turnеd to face the officer. When the officer reached the defendant, the officer asked the defendant if he had a gun on him. The defendant moved his right hand toward his rear pocket, and the officer grabbed his hand, whirled him around, and saw the handle of a firearm protruding from the defendant’s right, rear pocket.
The officer later tеstified that he did not see the gun when he first saw the defendant because “of the bag over his right side.” Similarly, the trial court could have reasоnably inferred that the gun was not visible to the officer because it was covered with the duffle bag.2
If the gun was in the defendant’s right rear poсket and its handle, the only part
The judgment of conviction is affirmed.
Affirmed.
Notes
. Main v. Commonwealth, 19 Va.App. 272, 450 S.E.2d 772 (1994).
. On appeal, wе must not only view the evidence in the light most favorable to the prоsecution, but also grant to it “all reasonable inferences fairly deducible” from the evidence. Josephs v. Commonwealth, 10 Va.App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc)
Dissenting Opinion
with whom BENTON and ELDER, JJ., join, dissenting.
I respectfully dissent. The essentiаl facts are not in dispute. Although Officer Dickerson initially was unable to see the weapon in Main’s pocket “because of thе bag over his right side,” the officer instantly saw and recognized the weаpon as soon as he turned Main so that the right side of Main’s body was facing him. These facts do not support a conclusion that the wеapon was “hidden from common observation” as that phrase is used in Code § 18.2-308.
Accordingly, and for the reasons more fully stated in the majority opinion in Main v. Commonwealth, 19 Va.App. 272, 450 S.E.2d 772 (1994), I would reverse Main’s conviction.