A Concealed Knife
 

When A Knife is "A Weapon of Like Kind"

Scuba Knife is Not a Concealed Weapon or of Like Kind

McMillan v. Commonwealth, 55 Va. App. 392, 686 S.E.2d 525 (2009 En Banc) (Picture of knife) or McMillan v. Commonwealth, 55 Va. App. 392, 686 S.E.2d 525 (Va. App. 2009)(Citations but no picture).

"The knife McMillan possessed is clearly neither a "switchblade" knife nor a "ballistic knife," and the Commonwealth does not claim otherwise. On appeal, the Commonwealth argued that McMillan's knife was either a dirk or a bowie knife or a "weapon of like kind" to one of those knives.

Observation of McMillan's knife, however, reveals that it does not match the description of a dirk or bowie knife. Unlike a dirk, the knife McMillan possessed lacked a "long blade" and a "protective guard where the blade meets the handle"2 or a "hilt...terminating in a pommel."3 Id. at 290, 673 S.E.2d at 473. As previously stated, the blade on McMillan's knife could hardly be described as long in that it measured approximately 3.75 inches. Further observation reveals that McMillan's knife does not fit the definition of a dirk, described as any stabbing weapon having two sharp edges and a point. The knife at issue has one sharp edge and one manifold edge; approximately half of which is serrated and the remainder of which is blunt. The blunt portion culminates in the point, making its stabbing capability dubious...Though McMillan testified that he carried the knife for protection, this statement does not change the physical characteristics of the knife he possessed or its method of operation such that it becomes a weapon.4 See Thompson, 277 Va. at 291, 673 S.E.2d at 474 (stating that "as we explained in Farrakhan, "[s]ubsequent use or circumstances may not be considered in the definitional analysis of "weapon.""' (citation omitted)). Nor can the purpose for which an individual carries a knife be dispositive as to whether that knife is either "designed for fighting purposes" or "commonly understood" to be a weapon. Cf. State v. Giltner, 537 P.2d 14, 16 (Haw. 1975) (holding that a scuba diver's knife is not a "deadly or dangerous weapon").

Though the knife in question, much like a kitchen knife, pocket knife, box cutter, butterfly knife, or letter opener, could be a dangerous instrument in the hands of a person with criminal intent, the issue before this Court is "what is proscribed by statute as unlawful not simply what may be dangerous." Farrakhan, 273 Va. at 183, 639 S.E.2d at 230. We strictly construe penal statutes against the Commonwealth. Harris, 274 Va. at 414, 650 S.E.2d at 91 (citing Farrakhan, 273 Va. at 182, 639 S.E.2d at 230). We conclude that the evidence before us does not establish that McMillan's "scuba" knife is designed for fighting purposes nor is it commonly understood to be a weapon."

Concurring Opinion:

"The statutory language we are called upon to define - "dirk, bowie knife...or weapon of like kind" - has appeared in the Code of Virginia since at least 1849. Title 54, Chapter 7, § 7 Code of Virginia (1849) made it illegal to "habitually, carry about [one's person] hid from common observation, any pistol, dirk, bowie knife or weapon of like kind." Apparently, at that time, a mere thirteen years after the death of the designer of one of the knives in question, Colonel James Bowie, Virginians did not have much trouble differentiating this weapon, or weapons like it, from more utilitarian knives such as hunting knives.

By the end of the twentieth century, however, that recognition had apparently faded. In 1998 our Supreme Court was first called upon to determine which bladed weapons fell within the scope of the statute. In Wood v. Henry County Public Schools, 255 Va. 85, 495 S.E.2d 255 (1998), the Court concluded that a pocketknife was "neither a dirk, bowie knife...nor a weapon of like kind." Id. at 94, 495 S.E.2d at 260. Since that date, our Supreme Court and this Court have considered the applicability of Code § 18.2-308(A) to various types of knives on no fewer than ten separate occasions, and the only consistency in the conclusions reached has been inconsistency...

I recognize the very legitimate and necessary purpose of Code § 18.2-308 - "to interdict the practice of carrying a deadly weapon about the person, concealed and yet so accessible as to afford prompt and immediate use." Schaff v. Commonwealth, 220 Va. 429, 430, 258 S.E.2d 574, 574-75 (1979). I also recognize, however, that there are very legitimate and lawful reasons to carry a concealed sharp instrument that is capable of injuring another person. Clearly, the General Assembly did not intend to prohibit all such conduct simply because of that capability. Because the "[s]ubsequent use or circumstances may not be considered in the definitional analysis of [a]'weapon,'" Farrakhan, 273 Va. at 182, 639 S.E.2d at 230, we must, therefore, continue to engage in an ad hoc comparison of the knife in question with weapons that are today primarily found in museums and knife collections.

In doing so, I am concerned that we are forgetting that a "statute or ordinance [must] be sufficiently precise and definite to give fair warning to an actor that contemplated conduct is criminal." Tanner v. City of Virginia Beach, 277 Va. 432, 439, 674 S.E.2d 848, 852 (2009) (citing Kolender v. Lawson, 461 U.S. 352, 357 (1983); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). We require this level of precision because "[i]t is simply not fair to prosecute someone for a crime that has not been defined until the judicial decision that sends him to jail." Sorich v. United States, No. 08-410, slip op. at 4 (U.S. Feb. 23, 2009) (Scalia, J., dissenting).7

Time has not been kind to Code § 18.2-308(A). Whatever clarity and certainty it had in 1849 has been obfuscated by a series of confusing and sometimes contradictory interpretations as we have attempted to conform nineteenth century language to twenty-first century reality. As a result, it now provides neither notice to the citizenry of what conduct it criminalizes, nor does it provide guidance to the members of law enforcement and the prosecutors who must enforce it or the judges who must apply it. Additionally, because a literal application of this statute excludes many dangerous bladed weapons and ignores the intent of the accused, it does not effectively "interdict the practice of carrying a [concealed] deadly weapon about the person." Schaff, 220 Va. at 430, 258 S.E.2d at 574-75. For these reasons, I believe that it is time for the General Assembly to craft a replacement and to "[salute] the [statute as currently written] for its notable service in past ages [and] now accord it a decent burial." Harper v. B & W Bandag Center, 226 Va. 469, 474, 311 S.E.2d 104, 107 (1984) (Russell, J., concurring).8"

[7] As the Attorney General conceded at oral argument, if this knife were considered a bowie knife or weapon of like kind, every hunter who carried a similar sheath knife in order to field dress his game would be guilty of a crime if the knife was concealed by, for instance, a jacket. I am confident that this would come as more than just a mild surprise to every sportsman in this Commonwealth.

Dissenting Opinion:

"...This knife is nothing "like a kitchen knife, pocket knife, box cutter, butterfly knife, or letter opener." Ante at 8. Instead, McMillan's knife is an aggressively crafted weapon "designed for stabbing purposes like a dagger," Thompson, 277 Va. at 291, 673 S.E.2d at 474, substantially similar (though not identical) in design and function to a dirk.

In reaching this conclusion, I see no reason why we should not also take into account McMillan's statement about his ongoing use of the knife as a weapon for his personal protection..."

A Butterfly Knife in this Case is NOT a Weapon of "Like Kind"

1) Thompson v. Commonwealth, 277 Va. 280, 673 S.E.2d 469 (2009). or Thompson v. Commonwealth, 277 Va. 280, 673 S.E.2d 469 (Va. 2009)(Citations).

"Although the evidence is sufficient to prove that Thompson's butterfly knife is a "weapon," it is insufficient as a matter of law to establish beyond a reasonable doubt that the particular knife at issue is "of like kind" to a dirk or any other weapon enumerated in Code § 18.2-308(A). The conclusion of the trial court, acting as the trier of fact, that Thompson's butterfly knife is "of like kind" to a dirk is plainly wrong and without evidence to support it. See Code § 8.01-680. For that reason, we will reverse the judgment of the Court of Appeals, vacate Thompson's conviction under Code § 18.2-308.2(A), and dismiss the amended indictment."

2) Gillman v. Commonwealth, __Va. App. __ S.E.2d __ (2007).

To be a "weapon of like kind," the knife must first be a weapon. Farrakhan, 273 Va. at  182, 639 S.E.2d at 230; see also Delcid, 32 Va. App. at 17, 526 S.E.2d at 275. Generally, a weapon is "[a]n instrument of offensive or defensive combat: something to fight with." Delcid, 32 Va. App. at 18, 526 S.E.2d at 275 (citing Webster's New Collegiate Dictionary 1326 (1977)). Because a bladed instrument may be "possessed and used for non-aggressive as well as aggressive purposes," determining whether the knife "is an implement or a weapon requires consideration not only of the physical character of the instrument itself, but also of the circumstances surrounding its possession and use." Id. at 19, 526 S.E.2d at 275. Although the purpose for carrying the knife is irrelevant under Code § 18.2-308(A) and 18.2-308.2, "that purpose is one of the defining characteristics of the item in question." Id. ...Here, as shown, the knife in question has a 6-inch blade and a 5-inch handle. The blade has one dull, straight edge, and one sharp edge. Both edges come to a sharp point. The knife contains the inscription "MCR-11 Handmade" on one side, and "Taylor/Seto Surgical Japan" on the other. The knife does not fold to cover the blade. Rather, a leather sheath protects the blade. The knife is clearly not an "innocuous household [knife or an] industrial kni[fe] which may be carried for legitimate purposes." Richards, 18 Va. App. at 246 n.2, 443 S.E.2d at 179 n.2. Nor is it an implement possessed for "non-aggressive" purposes. See generally Delcid, 32 Va. App. at 19, 526 S.E.2d at 275. Moreover, Gilliam did not possess this item during the day at a job site. Instead, the knife was found in his possession after he was arrested for public intoxication around ten o'clock at night. And although Gilliam testified that he used the knife for construction, the trial court found this testimony incredible. Thus, we hold that there is sufficient evidence to support the conclusion that the knife in question is a weapon.

See Also: Harris v. Commonwealth, __Va.__S.E.2d__,__(2007). A box cutter is not a weapon or a concealed weapon because it is not of like kind.

A Common Pocket Knife?

3) Ohin v. Commonwealth, 47 Va. App. 194, 622 S.E.2d 784, (2005).

"In this case, Ohin's knife is not a common pocketknife as he claims it to be. It has physical features making it similar to several of the prohibited knives listed in Code 18.2-308(A)(ii) and dissimilar to the kinds of "innocuous household and industrial knives which may be carried for legitimate purposes." Richards, 18 Va. App. at 246 n.2, 443 S.E.2d at 179 n.2. Ohin's knife has a "hilt like a sword," as the trial judge described it. This hilt includes a cross-guard to improve the stabbing capability of the knife by protecting the hand during the thrusting motion. The same can be said for the oversized, notched handle a feature that enhances the user's grip. These physical properties make the knife of "like kind" to the dirk and the switchblade, given that both are designed primarily for stabbing motions. The knife's substantial hilt and cross-guard make it quite unlike a common pocketknife, kitchen carving knife, or other type of non-fighting blade. Ohin's knife blade also locks securely when opened, much like a switchblade or a butterfly knife, and can be retracted only when unlocked. See, e.g., O'Banion, 33 Va. App. at 60, 531 S.E.2d at 605 (noting that a "retractable blade that can be locked into place" gives a knife a weapon-like quality). The blade comes to a point like a bowie knife, with one side sharpened and the other side shaped with a concave curvature. This blade design likewise improves the knife's fighting capabilities. What was said about the butterfly knife in Delcid can be said also about Ohin's knife: It has a "fixed blade, sharp point, and single-sharpened edge" affording it "unquestionable utility as a stabbing weapon." Id. at 18, 526 S.E.2d at 275; see also Richards, 18 Va. App. at 246, 443 S.E.2d at 179 (finding on "examination of the weapon's blade" it was a "weapon of like kind").

III.
In sum, the evidence supports the trial court's factual finding that Ohin's knife constitutes a "weapon of like kind" under Code 18.2-308(A)(v). We affirm Ohin's conviction, finding no error in the trial court's denial of his motion to strike the evidence."

See Also:    Samuel Kingrey v. Commonwealth , Va. App. (1999 Unpublished ), Delcid v. Commonwealth, 32 Va. App. 14, 526 S.E.2d 273 (2000). ; See Also: Ricks v. Commonwealth, 27 Va. App. 442, 444, 499 S.E.2d 575, 576 (1998). Holding that a common steak knife is not a concealed weapon under § 18.2-308.
 
 

4) Wood v. Henry County Public Schools, 255 Va. 85, 495 S.E.2d 255, (1998).