PRESENT: All the Justices

JONTREIL LAMAR BAKER

OPINION BY

v. Record No. 120252 JUSTICE LEROY F. MILLETTE, JR.

November 1, 2012

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether evidence of the 

possession of one firearm on three separate occasions can 

constitute three separate charges for possession of a firearm 

by a convicted felon in violation of Code § 18.2-308.2(A).

I. Background

Jontreil Lamar Baker, a convicted felon, and Calvin 

Williams visited Charna Chapman in the home that she shared 

with a roommate in Suffolk. During their visit, Chapman showed 

Baker her Hi-Point Firearms .380 caliber pistol. Baker offered 

to purchase the firearm, but Chapman refused to sell.

The next day, Chapman and her roommate returned home to 

find that the door they had locked just hours before was now

easily pushed open. The home had been burglarized and 

Chapman's firearm was missing. While they were away, Baker had 

entered the home through a window, taken the firearm, and left 

out of the front door. When Williams picked him up a block 

away from the home just minutes after the burglary, Baker 

displayed the firearm as he entered the car.
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Several weeks later, Baker showed Marvin Donnell McKinney

a Hi-Point .380 caliber pistol, which he offered to sell. 

After noting his interest, McKinney contacted Detective William 

N. Shockley of the City of Suffolk Police Department to inform 

him of the offer. Detective Shockley and McKinney organized a

"controlled purchase" of the firearm to occur the following 

day. Detective Shockley observed McKinney meet with Baker and 

receive a Hi-Point .380 caliber pistol in exchange for $225.

The firearm was later confirmed to be Chapman's missing 

firearm.

Baker was arrested and tried in the Circuit Court of the 

City of Suffolk. He was convicted of three counts of 

possession of a firearm by a convicted felon in violation of 

Code § 18.2-308.2(A).* Baker sought review in the Court of 

Appeals, where he argued that the trial court erred in 

convicting him of three counts of possession of a firearm by a 

convicted felon because he should have been convicted of only 

one continuous possession.

The Court of Appeals disagreed with Baker, holding that 

" 'the number of occasions' appropriately delineates the unit 

 * Baker was also convicted of statutory burglary in 

violation of Code §§ 18.2-90 and 18.2-91, grand larceny of a 

firearm in violation of Code § 18.2-95, and conspiracy to 

commit statutory burglary and/or grand larceny of a firearm in 

violation of Code § 18.2-22. On appeal, Baker does not 

challenge these three convictions.
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of prosecution constituting one offense of 'possession' under 

Code § 18.2-308.2." Baker v. Commonwealth, 59 Va. App. 146, 

153, 717 S.E.2d 442, 445 (2011) (quoting Brown v. Commonwealth, 

Record No. 1438-00-1 (June 12, 2001)). The Court of Appeals

upheld all three possession convictions, holding that an 

"occasion" is defined as a "particular occurrence" or a 

"particular time," and that each of the convictions was based 

on "distinguishable incidents." Id. at 152-54, 717 S.E.2d at 

445-46.

II. Analysis

Baker contends that the Court of Appeals erred in 

affirming his three convictions for possession of a firearm by 

a convicted felon under Code § 18.2-308.2(A) because the 

conduct charged should have constituted one continuous 

possession. He claims that the use of the concept of separate 

"occasions" as the relevant unit of prosecution fails to 

describe what length or duration of possession is sufficient to 

constitute a separate offense. Baker argues that under this

ambiguous standard, a felon who comes into possession of a 

firearm, takes it home, and places it in a safe for a year 

could be convicted of 365 separate violations of Code § 18.2-

308.2(A).

According to the Commonwealth, each separate and distinct 

occasion would constitute a separate possession under Code 
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§ 18.2-308.2(A), thereby justifying three separate convictions 

of Baker under the statute. In response to Baker's contention 

that such a finding could lead to 365 convictions for a year of 

continuous possession of a firearm in a locked safe, the 

Commonwealth points out that such a situation could not occur

because separate and distinct occasions of possession must be 

proven by the Commonwealth for each individual conviction. The 

Commonwealth contends that if a firearm remained untouched in a 

safe for 365 days, nothing separate or distinct would occur to 

establish a new occasion under the statute. Nor would there be 

evidence to prove possession on each of the 365 days of that 

year. We agree with the Commonwealth that the three 

convictions should be affirmed as each is a separate and 

distinct act or occurrence of possession, however, we reject as 

unclear the term "unit of prosecution" previously employed by

the Court of Appeals.

In this issue of statutory construction, we conduct a de 

novo review. Kozmina v. Commonwealth, 281 Va. 347, 349, 706 

S.E.2d 860, 862 (2011). Code § 18.2-308.2(A) provides, in 

pertinent part, "[i]t shall be unlawful for . . . any person 

who has been convicted of a felony . . . to knowingly and 

intentionally possess or transport any firearm . . . or to 

knowingly and intentionally carry about his person, hidden from 

common observation, any weapon described in subsection A of 
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§ 18.2-308." In interpreting this statute, "courts apply the 

plain meaning . . . unless the terms are ambiguous or applying 

the plain language would lead to an absurd result." Boynton v. 

Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006). A 

statute is considered ambiguous "if the text can be understood 

in more than one way or refers to two or more things 

simultaneously or when the language is difficult to comprehend, 

is of doubtful import, or lacks clearness or definiteness."

Id. at 227 n.8, 623 S.E.2d at 926 n.8 (citations, internal 

quotation marks, and alteration omitted). This statute, Code 

§ 18.2-308.2(A), lacks definition and is therefore ambiguous as 

to whether possession of a single firearm on different dates or 

at different times constitutes one continuous offense or 

multiple offenses.

Since we find the statute ambiguous as to when one offense 

ends and the next begins, we join the Court of Appeals of 

Virginia and the appellate courts of many other jurisdictions 

in using the gravamen of the offense to determine the

legislature's intent. See, e.g., Acey v. Commonwealth, 29 Va. 

App. 240, 249-50, 511 S.E.2d 429, 433-34 (1999) (finding 

simultaneous possession of multiple firearms does not justify 

multiple convictions for possession because the possession of a 

firearm by a felon is, of itself, the dangerousness that is the 

gravamen of the offense of possession); United States v. Evans, 
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854 F.2d 56, 60 (5th Cir. 1988) (determining that the making of 

a false statement, not the acquisition of the firearm, was the 

gravamen of the offense of the crime of furnishing false 

identification made in connection with the purchase of firearms 

and ammunition); Bautista v. State, 863 So. 2d 1180, 1186-87

(Fla. 2003) (finding the gravamen of the offense of DUI 

manslaughter to be the killing of a human being rather than a 

traffic violation).

In creating this statutory offense, the General Assembly 

recognized that each act of possessing the firearm places the 

public in a heightened level of danger that does not coincide 

with the defendant's initial receipt of the firearm. This is 

evidenced by the language of Code § 18.2-308.2(A), which, along 

with possession of a firearm, includes specific prohibitions 

against the distinct acts of transporting a firearm and 

"carry[ing] about [the felon's] person, hidden from common 

observation, any weapon" named in the statute. We have held 

that "every part of a statute is presumed to have some effect 

and no part will be considered meaningless unless absolutely 

necessary." Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 

497 S.E.2d 335, 338 (1998). We therefore find that the 

inclusion of these specific references expresses the General 

Assembly's intent that separate instances of possession, and 

therefore of heightened danger to the community, be punished 
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separately. If the statute was meant to restrict the offense 

only to the receipt, initial possession, or even extended 

possession of the weapon, such a specific reference to the

transporting or carrying of that weapon would be a frivolous 

and unnecessary addition to the statutory language. The 

implicit danger in each separate instance of possession was 

also noted by the Court in Armstrong v. Commonwealth, 263 Va. 

573, 582-83, 562 S.E.2d 139, 144 (2002), where we found a felon 

"unfit to possess firearms," making each possession of a 

firearm by a felon, whether for a lawful or unlawful purpose,

the conduct the General Assembly intended to curtail.

The General Assembly's goal in punishing a convicted felon 

for possessing or transporting a firearm is therefore not 

limited to preventing a felon's receipt or initial possession

of a firearm, but extends to the prevention of the heightened 

danger each new instance of possession creates. In light of 

the legislative intent behind this provision, each separate 

incident of possession of a firearm by a convicted felon proven 

by the Commonwealth establishes a new offense because each 

incident is sufficient to create a new danger to members of the 

community exposed to the armed felon.

This is a position similar to those taken by other 

jurisdictions with regards to the distinction between separate 

offenses of possession, and it is consistent with the harm that 
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the General Assembly intended to address with this statute.

See United States v. Jones, 841 F.2d 1022, 1024 (10th Cir. 

1988) (finding no division between unlawful receipt and 

unlawful possession of a firearm because no new date or 

specific act or transaction was proven by the government);

Melton v. State, 842 A.2d 743, 757 (Md. 2004) (holding that 

only a single conviction was justified when the defendant 

committed only one act of possession but was a member of more 

than one of the nine listed classes prohibited from possessing 

the firearm); State v. Johnson, No. 52370-8-I, 2004 Wash. App. 

LEXIS 1132, at *8-11 (Wash. Ct. App. June 1, 2004)

(unpublished) (explaining that "any firearm" in the possession 

statute indicated an intention that each "separate instance of 

unlawful possession . . . constitute a violation").

In accordance with the gravamen of the offense, we hold

that a new offense of possession can be established with each 

separate act or occurrence that can be proven by the 

government. Under this analysis, each of the three convictions 

under Code § 18.2-308.2(A) derive from distinct offenses. The 

first conviction was based on the possession of the firearm the 

day it was stolen, supported by evidence of the burglary and 

Williams' testimony that the firearm was displayed to him by 

Baker on the same day. The second conviction was based on the 

possession of the same firearm several weeks later, supported 
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by evidence of Baker's attempt to sell the firearm to McKinney. 

The final conviction was for the possession, display, and sale 

of the firearm by Baker the following day, which was observed 

by Detective Shockley and testified to by the recipient of the 

firearm. These incidents constitute distinct acts or 

occurrences, each reflecting an enhanced danger to the public, 

and convictions for the three separate charges on the facts of 

this case are therefore valid under Code § 18.2-308.2(A).

III. Conclusion

For the foregoing reasons, we hold that the Court of 

Appeals did not err in affirming the three convictions under 

Code § 18.2-308.2(A) for separate acts or occurrences as proven 

by the Commonwealth. We will affirm the judgment of the Court 

of Appeals.

Affirmed.

JUSTICE POWELL, dissenting.

In my opinion, the majority fails to apply a crucial rule 

of statutory construction applicable to unit of prosecution 

cases such as this one. In so doing, the majority ignores the 

necessary application of the rule of lenity requiring that we 

construe an ambiguous statute in a criminal defendant’s favor. 

Therefore, I must respectfully dissent.

As the majority correctly notes, Code § 18.2-308.2(A) is 

ambiguous as to what the proper unit of prosecution is under 
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the statute. Code § 18.2-308.2(A) does not indicate 

unambiguously whether the General Assembly intended to create a 

separate offense for each “occasion” on which a felon possesses 

a firearm during a certain period of time. To resolve the 

ambiguity, we must look to the General Assembly’s intent in 

enacting the statute.

In attempting to ascertain the General Assembly’s intent, 

the majority is correct that we must look to the gravamen of 

the offense. However, we must also be mindful of the fact that 

“[w]hen a penal statute is unclear, the statute must be 

strictly construed against the Commonwealth and in favor of an 

accused’s liberty, and the accused is entitled to the benefit 

of any reasonable doubt concerning the statute's construction.” 

Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825 

(1998) (emphasis added). Indeed, we have previously recognized 

that, before the accused can be punished, “‘his case must be 

plainly and unmistakably within the statute.’” Harward v. 

Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985) 

(quoting United States v. Lacher, 134 U.S. 624, 628 (1890)).

The United State Supreme Court has provided guidelines for 

the proper application of such a rule of lenity:

When Congress has the will it has no difficulty in 

expressing it – when it has the will, that is, of 

defining what it desires to make the unit of 

prosecution and, more particularly, to make each 

stick in a faggot a single criminal unit. When 
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Congress leaves to the Judiciary the task of imputing 

to Congress an undeclared will, the ambiguity should 

be resolved in favor of lenity. And this not out of 

any sentimental consideration, or for want of 

sympathy with the purpose of Congress in proscribing 

evil or antisocial conduct. It may fairly be said to 

be a presupposition of our law to resolve doubts in 

the enforcement of a penal code against the 

imposition of a harsher punishment. This in no wise 

implies that language used in criminal statutes 

should not be read with the saving grace of common 

sense with which other enactments, not cast in 

technical language, are to be read. Nor does it 

assume that offenders against the law carefully read 

the penal code before they embark on crime. It 

merely means that if Congress does not fix the 

punishment for a federal offense clearly and without 

ambiguity, doubt will be resolved against turning a 

single transaction into multiple offenses . . . .

Bell v. United States, 349 U.S. 81, 83-84 (1955) (emphasis 

added).

In the present case, it is undisputed that the “gravamen 

of the offense” under Code § 18.2-308.2 is “the possession of a 

firearm by a felon.” Acey v. Commonwealth, 29 Va. App. 240, 

250, 511 S.E.2d 429, 433-34 (1999) (emphasis added). 

Furthermore, it has been recognized that “[p]ossession is by 

nature a continuing offense.” Jordan v. Virginia, 653 F.2d 

870, 875 (4th Cir. 1980); see also Morris v. Commonwealth, 51 

Va. App. 459, 467, 658 S.E.2d 708, 712 (2008). “A continuing 

offense is a continuous, unlawful act or series of acts set on 

foot by a single impulse and operated by an unintermittent 

force, however long a time it may occupy.” United States v. 
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Midstate Horticultural Co., 306 U.S. 161, 166 (1939) (internal 

quotation marks omitted).

It has been recognized that

cases involving multiple convictions under a single 

statutory provision. . . . are often referred to as 

“unit of prosecution” cases, as they consider whether 

the conduct at issue was intended to give rise to 

more than one offense under the same provision.

United States v. McLaughlin, 164 F.3d 1, 14 (D.C. Cir. 1998)

(emphasis added). The present case is clearly a unit of 

prosecution case as it only involves a single statute: Code 

§ 18.2-308.2(A). In applying the rule of lenity espoused in 

Bell to a unit of prosecution case involving a continuous 

offense, such as possession, appellate courts have 

overwhelmingly held that a continuous offense can only be 

charged as a single offense. See United States v. Ellis, 622 

F.3d 784, 793 (7th Cir. 2010); United States v. Hope, 545 F.3d 

293, 296 (5th Cir. 2008); United States v. Finley, 245 F.3d 

199, 208 (2d Cir. 2001); United States v. Rivera, 77 F.3d 1348, 

1351 (11th Cir. 1996); United States v. Horodner, 993 F.2d 191, 

193 (9th Cir. 1993); United States v. Jones, 841 F.2d 1022, 

1023 (10th Cir. 1988), (recognizing that “ambiguity in the 

definition of conduct to be punished must be settled against 

turning a single transaction into multiple offenses”).

I am particularly persuaded by the United States Court of 

Appeals for the Sixth Circuit’s decision in United States v. 
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Jones, 533 F.2d 1387 (6th Cir. 1976). The facts of Jones are 

markedly similar to the present case as both cases involve a 

convicted felon who was observed to have possession of the same 

firearm on three separate occasions over a three year period 

which ultimately resulted in three convictions for possession 

of a firearm by a convicted felon. Id. at 1389-90. In 

reversing two of the convictions, the Sixth Circuit explained:

It is true that in the case at bar the Government is 

claiming that Jones possessed the pistol on three 

separate occasions, not that continuous possession 

existed which has been broken down into arbitrary 

time period[s]. With equal propriety the Government 

might have charged Jones with possession on more than 

1100 separate days and obtained convictions to 

imprison Jones for the rest of his life. The fact 

that the Government merely has proof that he 

possessed the same weapon on three separate 

occasions, rather than continuously for a three-year 

period, should not dictate the result that Jones 

could receive three times the punishment he would 

face if continuous possession for a three-year period 

were proved. There is no proof that there was any 

interruption in the possession by Jones of the 

weapon.

Id. at 1391 (emphasis added). The majority in this case, 

however, would require a different result.

I am also not persuaded by the majority’s reliance on the 

General Assembly’s inclusion of “specific prohibitions.” The 

plain language of Code § 18.2-308.2(A) prohibits a convicted 

felon from 

knowingly and intentionally possess[ing] or 

transport[ing] any firearm or ammunition for a 

firearm, any stun weapon as defined by § 18.2-308.1, 
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or any explosive material, or . . . knowingly and 

intentionally carry[ing] about his person, hidden 

from common observation, any weapon described in 

subsection A of § 18.2-308.

(Emphasis added.)

In making its argument, the majority fails to recognize 

the significance of the disjunctive “or” that immediately 

proceeds the “specific prohibitions” upon which it relies as 

well as the subsequent change in verbiage regarding the 

prohibited acts. As evidenced by the use of the word “or,” 

possessing a firearm can be distinguished from carrying a 

concealed weapon. While every weapon that is concealed is 

possessed, not every weapon possessed is concealed. Indeed, it 

is worth noting that the “specific prohibitions” set forth in 

Code § 18.2-308.2(A) do not prohibit a convicted felon from 

possessing many of the weapons delineated (firearms being the 

obvious exception); rather, that portion of the statute only 

prohibits a convicted felon from carrying and concealing those 

weapons about his person. Thus, had Baker been charged with 

carrying a concealed firearm on each of the three occasions, 

only then would the specific prohibitions be applicable.

Moreover, the presence of this change in verbiage clearly 

demonstrates the General Assembly’s ability to distinguish a 

distinct unit of prosecution where it elects to do so. In the 

absence of such an election by the General Assembly, the 
15

statute is clearly ambiguous and our jurisprudence requires 

that we apply the rule of lenity. See Waldrop, 255 Va. at 214, 

495 S.E.2d at 825. In my opinion, the proper course of action 

is to follow the guidelines established in Bell. Such 

application would necessarily require this Court to hold that 

the General Assembly only intended to punish as a single 

offense all acts of dominion demonstrating uninterrupted 

possession of the firearm. If the General Assembly had 

intended to punish each time a felon is witnessed to be in 

possession of a firearm, as the majority suggests, it could 

have done so by forbidding each act of dominion instead of the 

entire course of conduct.

It is further worth noting that the majority’s stated 

holding necessitates reversal in the present case. The 

majority specifically holds that “a new offense of possession 

can be established with each separate act or occurrence that 

can be proven by the government.” However, as previously 

discussed, possession is a continuing offense. Therefore, it 

is axiomatic that, in order for there to be a separate act or 

occurrence of possession, there must be some form of 

interruption in the initial act or occurrence of possession. 

See, e.g., Rivera, 77 F.3d at 1351 (“Where there is no proof 

that possession of the same weapon is interrupted, the 

Government may not arbitrarily carve a possession into separate 
16

offenses”); United States v. Conley, 291 F.3d 464, 470 (7th 

Cir. 2002) (“a felon may be charged and convicted of two counts 

of possessing the same firearm only if: (1) he possesses the 

weapon; (2) he is aware that his possession of the weapon has 

been interrupted; and (3) he thereafter reacquires possession 

of the weapon himself.”). In other words, the defendant must 

have been dispossessed of the firearm before there can be a 

separate act or occurrence of possession. As there is no 

evidence of Baker being dispossessed of the firearm, there is 

only a single act or occurrence of possession.

For all the foregoing reasons, I cannot join in the 

majority’s opinion. Rather, I would hold that a proper 

application of the rule of lenity demonstrates that the 

evidence in the present case only supports one conviction for 

Baker’s continuous possession of the firearm. Accordingly, I 

would reverse the decision of the Court of Appeals, affirm the 

trial court as to one count of possession of a firearm by a 

convicted felon and dismiss the remaining two counts of 

possession of a firearm by a convicted felon.