COURT OF APPEALS OF VIRGINIA

Present: Chief Ju dge Fitzpatrick, Judges Benton and Bumgardner Argued at Richmond, Virginia

SHAKA AMIR FARRAKHAN MEMORANDUM OPINION ∗ BY v. Record No. 1804-04-4 CHIEF JUDGE JOHANNA L. FITZPATRICK NOVEMBER 29, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Thomas A. Fortkort, Judge Designate Paul E. Pepper, Deputy P ublic Defender, for appellant. Michael T. Judge, Assistant Attorney General (Judith Williams Jadgmann, Attorney General; Pa ul C. Galanides, Assistant Attorney General, on brief), for appellee.
Shaka Farrakhan (appellant) ap peals his conviction in a be nch trial of possession of a concealed weapon while a convicted fe lon, in violation of Code § 18.2-308.2. 1 Appellant contends that the evidence was insufficient to pr ove that the knife he carried was a proscribed weapon. Because we hold that the knife carri ed by appellant was a “weapon of like kind” as contemplated by Code § 18.2-308(A), we affirm.
I. BACKGROUND Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it al l reasonable inferences fairly deducible therefrom. Haskins v. Commonwealth , 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999).

∗ Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant was also convicted of robbery in violation of Code § 18.2-58, but no issues with regard to that convic tion are before this Court.- 2 - “In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be dr awn therefrom.” Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (citations omitted). Viewed in this light, the evidence establis hed that on January 8, 2004, appellant entered the Nine West Outlet store in Alexandria betw een 11:00 a.m. and 11:30 a.m. wearing a long and bulky coat. Appellant walked over to a stack of women’s boots. Ange la Souber (Souber), a store clerk, followed appellant and asked if she co uld help him. Appellant responded with a few questions and then stated that he did not need further assistance. Souber walked to the front door and stood near the door entrance. Appellant came toward the front door, holding two shoe boxes in both hands. Appellant th en pulled a knife out of his jacket. Souber asked appellant to return the boots, and appellant jabbed the knife at her and told her to get out of his way. Souber backed away, and appe llant ran outside and entered a taxicab. 2
Souber testified that the knife looked like a “k itchen knife.” The kni fe is 123⁄4 inches long with a 73⁄4 inch blade honed to a cu tting edge and has a sharp point. Appellant was indicted on the charges of robbery and possession of a concealed weapon while a convicted felon. At the bench trial on April 29, 2004, counsel for appellant moved to strike the charge of possessing a concealed w eapon while a convicted felon, arguing that the knife was not a “weapon of like kind. ” The trial judge denied the motion to strike, finding that “This is not a pen knife or a pocke t knife or something else. It is a kitchen knife, but it has a

2 Appellant does not contest the trial court’s findings that he was a felon at the time of the robbery, that he possessed the knife that was presen ted to the trial court or that he concealed the knife. The sole issue on appeal is whether the knife appellant used is a “weapon of like kind” prohibited by statute.- 3 - long, thin blade, very much similar to that described in [Delcid v. Commonwealth , 32 Va. App. 14, 526 S.E.2d 273 (2000)].” The trial judge found appellant guilty of both charges.
II. ANALYSIS Appellant argues that the knife used in the robbery was not a “weapon of like kind” envisioned by Code § 18.2-308(A) and therefore that the trial court erred in finding him guilty of possession of a concealed weapon by a convicted fel on. We disagree and a ffirm the judgment of the trial court. Code § 18.2-308.2 prohibits a convicted fel on from carrying “about his person, hidden from common observation, any weapon describe d in subsection A of § 18.2-308.” Code § 18.2-308(A) describes a weapon as “(ii) any di rk, bowie knife, switchblade knife, ballistic knife, machete, razor, slingshot, spring stick, me tal knucks, or blackjack; . . . or (v) any weapon of like kind as those enumerated.” The determination of whether a particular knif e is a “weapon of like kind” is “a question of fact to be determined by the trier of fact.” Delcid , 32 Va. App. at 17, 526 S.E.2d at 274. Factual findings are given great deference, and the trial court’s judgment will not be overturned unless it is “plainly wrong or without ev idence to support it.” Wilson v. Commonwealth , 46 Va. App. 408, 432, 617 S.E.2d 431, 443 (2005) (citation omitted). Furthermore, while penal statutes are to be strictly constr ued in favor of the accused, “a defe ndant is not entitled to benefit from an ‘unreasonably restrictiv e interpretation of the statut e.’” O’Banion v. Commonwealth , 33 Va. App. 47, 57, 531 S.E.2d 599, 604 (2000) (quoting Holloman v. Commonwealth , 221 Va. 196, 198, 269 S.E.2d 356, 357 (1980)). The determination of whether a particular in strument is a weapon contemplated by Code § 18.2-308(A) “requires considerati on not only of the physical charac ter of the instrument itself,- 4 - but also of the circumstances surrounding its possession and use.” Delcid , 32 Va. App. at 18, 526 S.E.2d at 275. The purpose for which [a knife] is created and employed is a critical distinction between an implement and a weapon. Thus, while the specific purpose for whic h the item is possessed is not itself an element of the crim es defined by Code §§ 18.2-308(A) and 18.2-308.2, that purpose is one of the defining characteristics of the item in question. Id. at 19, 526 S.E.2d at 275 (emphasis added). In Delcid , a knife with a “fixed blade, sharp point, and single-sharpened edge” afforded “unques tionable utility as a stabbing weapon” and so the “circumstances, coupled with the physical characteristics of the knife” supported the trial court’s characterization of th e knife as a weapon. Id. at 18, 526 S.E.2d at 275; see also Richards v. Commonwealth , 18 Va. App. 242, 246, 443 S.E.2d 177, 179 (1994) (finding a spring-blade knife to be a “weapon of like kind”). Conversely, the legislature intended “to ex clude from concealed weapons statutes innocuous household and industr ial knives which may be carri ed for legitimate purposes.” Richards , 18 Va. App. at 246 n.2, 443 S.E.2d at 179 n.2. Therefore, knives used for innocent purposes, rather than knives being used to carry out a criminal design, are less likely to fall into the category of “weapons” regardless of whether they have an intimidating physical appearance. See, e.g., Wood v. Henry County Public Schools , 255 Va. 85, 88, 95, 495 S.E.2d 255, 257, 261 (1998) (deciding that a pock etknife was not a weapon when appellant carried it on a school-sponsored field trip to a jail and handed the knife to the deputy); Ricks v. Commonwealth , 27 Va. App. 442, 499 S.E.2d 575 (1998) (fi nding that a kitchen knife with a four-inch blade was not a weapon when appellant was arrested for driving while intoxicated and the knife was found in a search of appellant’s vehicle). Appellant argues that because th e knife used in the robbery wa s a “kitchen knife” it is not a “weapon of like kind.” We disagree. The ev idence amply supports the trial court’s finding- 5 - that the knife was similar in appearance to the knife in Delcid . While nominally described as a “kitchen knife,” the knife when viewed is more ak in to a butcher’s knife. It is 123⁄4 inches long with a sharp 73⁄4 inch blade that is finely honed an d has a sharp point. It possesses, as discussed in Delcid , “unquestionable ut ility as a stabbing weapon.” Delcid , 32 Va. App. at 18, 526 S.E.2d at 275. This was the threat posed by appellant. In considering whether a knife is a “wea pon of like kind” we look not only to the appearance of the instrument, but also to the purpose for which it was employed and the circumstances surrounding its use. The knife wa s used in a threatening manner in a robbery. Appellant concealed the knife in his jacket and used it to threat en the store clerk in order to escape the store with two pairs of boots. The clerk retreated “s o that he wouldn’t stab me in the stomach.” In addition, appellant noted at his sentencing hearing that “I usually had a knife because I’m in high crime areas,” implying th at he could use the knife for protection. The circumstances, when viewed as a whole, support the trial court’s finding that the knife was a “weapon of like kind.” Not only did the knife have the appearance of a weapon, evidenced by appellant’s admission that he carried it for his own protection, but it also was used as the means necessary to effectuate a robbery. This holding comports w ith the purpose of Code § 18.2-308.2, which is “to interdict the practice of carry ing a deadly weapon about the person, concealed, and yet so accessible as to affo rd prompt and immediate use.” Richards , 18 Va. App. at 244, 443 S.E.2d at 178 (citation omitted). Therefore, we hold that the knife used in the instant case is a “weapon of like kind” for th e purposes of Code § 18.2-308(A). Accordingly, we affirm the judgment of the trial court. Affirmed.- 6 - Benton, J., dissenting. The majority concludes that the kitchen kni fe was a “weapon of like kind” due to the knife’s appearance, its “utility as a stabbing weapon,” Shaka Farrakhan’ s subjective perception of the knife, and how he used it. I disagree with this conclusion. I woul d reverse the conviction because a common kitchen knife is not within the scope of the items prohibited by Code § 18.2-308. In pertinent part, Code § 18.2-308.2 prohibits “any person who has been convicted of a felony . . . to knowingly and intentionally carry about his pers on, hidden from common observation, any weapon described in [Code § 18.2-308(A)].” Code § 18.2-308 proscribes concealing “any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor . . . or . . . any weapon of like kind as those enumerated in this subsection.” At issue in this case is the definition of “weapons of like kind,” a matter of interpreting the statutory language. “Statutory interpretation presents a pur e question of law subject to de novo review by this Court.” Horner v. Dep’t of Mental Health , 268 Va. 187, 192, 597 S.E.2d 202, 204 (2004). “[P]enal statutes must be strictly constr ued against the Commonwea lth and applied only in those cases clearly falling within the langua ge of the statute.” Branch v. Commonwealth , 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). “They cannot be extended by implication.” Harward v. Commonwealth , 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985). In our construction of penal statutes, we must give the accused the bene fit of a reasonable doubt about the law, as he benefits from a reasonable doubt about the facts. Enoch v. Commonwealth , 141 Va. 411, 436, 126 S.E. 222, 230 (1925); see also Martin v. Commonwealth , 224 Va. 298, 300-01, 295 S.E.2d 890, 892 (1982). Thus, the question for us to consider is whether there is a reasonable doubt that the language “weapon of like kind” encompasses a kitchen knife.- 7 - The term “weapons of like kind” does not include every type of knife. Wood v. Henry County Public Schools , 255 Va. 85, 95, 495 S.E.2d 255, 261 (1998) (holding that the statute does not encompass pocketknives); see also O’Banion v. Commonwealth , 33 Va. App. 47, 58, 531 S.E.2d 599, 604 (2000) (noting that the statute “does not absolutely prohibit a felon from carrying a knife”). The legislat ure “intended to exclude . . . innocuous household and industrial knives.” Richards v. Commonwealth , 18 Va. App. 242, 246 n.2, 443 S.E.2d 177, 179 n.2 (1994). In analyzing the scope of “weapons of like kind,” we should first look at the types of weapons enumerated. “[W]hen a particular class of . . . things is enumerated in a statute and the general words follow, the ge neral words are to be restricted in their meaning to a sense analogou s to the less general, particular words. Likewise . . . when ge neral and specific words are grouped, the general words are limited by the specific and will be construed to embrace only objects similar in na ture to those things identified by the specific words.” Wood , 255 Va. at 94, 495 S.E.2d at 260-61 (citations omitted) (discussing the principles of ejusdem generis and noscitur a sociis ). Thus, the definition of th e general words “any weapon of like kind” is limited by the nature of the weapons that the statute spec ifically names. See Kappa Sigma Fraternity, Inc. v. Kappa Sigma Fraternity , 266 Va. 455, 470, 587 S.E.2d 701, 710 (2003) (“Under this doctrine, . . . the general words will not be construed to include matters within their broadest scope[.]”). A knife must closely resemble one of the e numerated weapons to qualify as a “weapon of like kind.” See O’Banion , 33 Va. App. at 60, 531 S.E.2d at 605 (holding that a box cutter is a weapon of like kind to a razor); Delcid v. Commonwealth , 32 Va. App. 14, 18, 526 S.E.2d 273, 275 (2000) (holding that a butterfly knife is a weapon of like kind to a dirk). A knife’s physical characteristics determine whether it is a w eapon contemplated by the statute. Ricks v. Commonwealth , 27 Va. App. 442, 445, 499 S.E.2d 575, 576 ( 1998). If the legislature had- 8 - intended for the statute to cover kitchen knives or large knives, it could have drafted the statute to include those knives. In this case, the trial judg e found the knife was a kitchen knife, but physically similar to the knife in Delcid , 32 Va. App. 14, 526 S.E.2d 273, because it had a “long, thin blade.” This description of the kitchen knife’s physical characteristics is not su fficient to bring it within the statutory definition of “weapons of like kind.” The statute only encompasses the enumerated weapons and “weapon[s] of like kind as those enum erated.” Code § 18.2-308. The type of knife at issue in Delcid , a butterfly knife, is not a weapon enumerated in the statute. In addition, the knife at issu e in this case does not bear ev en a vague resemblance to a butterfly knife. The knife we described in Delcid had a single blade that could fold into its hinged handle. Delcid , 32 Va. App. at 17, 526 S.E.2d at 274. Farrakhan’s knife had a fixed blade and a plastic handle. A folded butterfly knife fits easily and safely in a pocket. A kitchen knife does not. Kitchen knives are found in every household and many businesses, while butterfly knives are not. In fact, some states specifically pr ohibit possessing or selling butterfly knifes, see , e.g. , Ark. Code § 5-73-120; while others have deemed them to be of like kind to a switchblade. See State v. Riddell , 811 P.2d 576 (N.M. Ct. App. 1991) (prohibiting butterfly knives as a type of switchblade). True, the knife in this case has a long, thin blade, but so do many steak knives, which the statute does not prohibit. See Ricks , 27 Va. App. 442, 499 S.E.2d 575. True, it has a sharp point, a sharp edge, and can be used as a st abbing weapon, but so do many pocketknives and most steak knives, which the statute does not encompass. See id. ; Wood , 255 Va. at 95, 495 S.E.2d at 261. Indeed, these criteria that the major ity uses are not statutor y factors and cannot be determinative because most knives (including ordi nary pocketknives) can be used as stabbing weapons, regardless of size. See Wood , 255 Va. at 95, 495 S.E.2d at 261 (holding that “a- 9 - pocketknife is neither a dirk, bow ie knife, switchblade knife, ballis tic knife, nor a weapon of like kind”). The majority found Farrakhan’s statemen t implying that he had the knife for self-protection and his actual use of the knife as a weapon persuasive to show the knife is a “weapon of like kind.” Neither Farrakhan’s statemen t nor his use of the knife is relevant to our inquiry. See Ricks , 27 Va. App. at 445, 499 S.E.2d at 576; see also Wood , 255 Va. at 94-95, 495 S.E.2d at 260-61 (concluding that a pocketknife is not a weapon of like ki nd without considering the student’s subjective perception of the knife or his purpose for ha ving it). The language of the statute does not provide that the purpose for carry ing an item is relevant to whether it is a prohibited weapon. Ricks , 27 Va. App. at 445, 499 S.E.2d at 576. The statutory language that th e legislature chose does not pros cribe all knives or even all large knives. Because the statute employs language limiting the nature of the knives and one reasonable construction of that la nguage excludes the kitchen knife at issue from the statute, we must resolve any reasonable doubt respecting its intended meaning in the accused’s favor. For these reasons, I would reverse the conviction for possession of a concealed weapon while a convicted felon. Therefore, I dissent.