Present: All the Justices 

LAFATE KINGSBUR, III 

v. Record No. 031016 OPINION BY JUSTICE ELIZABETH B. LACY 

 March 5, 2004 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

Lafate Kingsbur, III, appeals the judgment of the Court 

of Appeals affirming his conviction for possession of a 

firearm by a convicted felon in violation of Code § 18.2-

308.2. Kingsbur contends that the Commonwealth failed to 

prove beyond a reasonable doubt that the handgun he possessed 

qualified as a firearm under the statute. Because we conclude 

that the trial court's factual determination that the handgun 

was a firearm was not plainly wrong or without evidence to 

support it, we will affirm the judgment of the Court of 

Appeals. 

FACTS 

 On the evening of October 1, 2001, two officers of the 

Portsmouth Police Department saw Kingsbur outside Swanson 

Homes, a Portsmouth housing project. One of the officers saw 

a white grocery bag "wrapped up" in Kingsbur's hand. When the 

officers approached, Kingsbur put the bag down next to a trash 

can. The officers told Kingsbur that he was under arrest for 

trespassing.
Suspecting that Kingsbur had a weapon or drugs, the 

officers retrieved the white bag and found a handgun inside. 

Kingsbur told the officers he had found the gun in a park 

earlier and was "trying to find somewhere to throw it down." 

Kingsbur testified that he wanted to dispose of the handgun 

because he did not want it to fall into a child's hands and 

that he knew the gun did not work because the "chambers . . . 

fell off" when he picked up the gun. He also testified that 

he put the gun down by the trash can because he did not want 

to get caught with it. There were no bullets in the gun. 

Kingsbur was charged with a violation of Code § 18.2-308.2. 

The certificate of analysis admitted as an exhibit at 

Kingsbur’s bench trial stated that the gun was a Davis 

Industries, Model P-32, .32 caliber automatic pistol. The 

certificate also stated that the pistol "does not function and 

could not be test fired" because there were ten missing parts. 

Kingsbur argued that the handgun’s state of disrepair rendered 

it inoperable and, therefore, that the Commonwealth failed to 

show that the handgun he possessed was a firearm within the 

meaning of Code § 18.2-308.2.

The trial court applied the Court of Appeals' opinion in 

Armstrong v. Commonwealth, 36 Va. App. 312, 549 S.E.2d 641 

(2001) (en banc). In that opinion, the Court of Appeals held 

that for purposes of Code § 18.2-308.2 a "firearm" was an 

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instrument "made with the purpose to expel a projectile by 

gunpowder or other explosion" and that proof of present 

operability was not required. Id. at 321-22, 549 S.E.2d at 

645-46. Accordingly, the trial court rejected Kingsbur's 

motion to strike the Commonwealth's evidence based on the 

inoperability of the handgun. Kingsbur was convicted of 

possession of a firearm by a convicted felon and sentenced to 

five years in prison. 

The Court of Appeals affirmed Kingsbur's conviction based 

on this Court's opinion in Armstrong v. Commonwealth, 263 Va. 

573, 584, 562 S.E.2d 139, 145 (2002). Kingsbur v.

Commonwealth, 40 Va. App. 307, 311, 579 S.E.2d 357, 359 

(2003). 

DISCUSSION 

Kingsbur argues here, as he did in the Court of Appeals, 

that the trial court should have granted his motion to strike 

the Commonwealth's evidence because the evidence failed to 

show that Kingsbur possessed a firearm within the meaning of 

Code § 18.2-308.2. Kingsbur asserts that, under this Court’s 

opinion in Armstrong, a firearm that has lost the 

characteristic of firing a projectile by means of an explosion 

is no longer a firearm for purposes of the statute. Here the 

evidence showed that the handgun at issue could not be test 

fired, did not function, was missing parts, and "came apart" 

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in Kingsbur's hands when he first picked it up. These facts, 

Kingsbur asserts, show that the handgun was in such a state of 

disrepair that it ceased to function as a firearm within the 

meaning of Code § 18.2-308.2. Kingsbur also asserted that it 

was the burden of the Commonwealth to prove that the handgun 

had not lost its characteristics as a firearm. 

In Armstrong, we approved the holding of the Court of 

Appeals that a firearm is an instrument which was "designed, 

made, and intended to expel a projectile by means of an 

explosion." 263 Va. at 585, 562 S.E.2d at 146. In a footnote 

we stated: 

Common sense and experience leave no room for 

doubt that an instrument originally designed, 

made, and intended to expel a projectile by force 

of an explosion can lose this characteristic in 

many ways such that it would no longer be fairly 

considered a firearm. 

Id. at 584 n.6, 562 S.E.2d at 145 n.6. This statement, upon 

which Kingsbur relies, refers to exceptional circumstances and 

not simply a showing of disrepair that might preclude 

expelling a projectile by explosion at a particular point in 

time. Id. at 584, 562 S.E.2d at 146. 

Contrary to Kingsbur’s assertions, the Commonwealth did 

not have the burden of disproving that the handgun lost its 

characteristics as a firearm. The Commonwealth had the burden 

of presenting prima facie evidence on all elements of the 

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crime charged and, once the Commonwealth met that burden, 

Kingsbur had the option of presenting evidence raising a 

reasonable doubt regarding one or more of those elements. 

However, the ultimate burden of persuasion always remained on 

the Commonwealth and if, considering the evidence as a whole, 

both for the Commonwealth and Kingsbur, there existed a 

reasonable doubt of his guilt, he was entitled to be acquitted 

of the offense. See Dobson v. Commonwealth, 260 Va. 71, 74-

75, 531 S.E.2d 569, 571 (2000); Hodge v. Commonwealth, 217 Va. 

338, 342, 228 S.E.2d 692, 695 (1976). 

We therefore turn to Kingsbur's challenge to the 

sufficiency of the evidence. Applying well-known principles 

of appellate review, we view the evidence in the light most 

favorable to the Commonwealth and will not set aside the 

verdict unless it is plainly wrong or without evidence to 

support it. Beavers v. Commonwealth, 245 Va. 268, 281-82, 427 

S.E.2d 411, 421 (1993). 

Here, the Commonwealth was required to prove beyond a 

reasonable doubt that the handgun in Kingsbur's possession was 

designed, made, and intended to fire or expel a projectile by 

means of an explosion. It was not obligated to prove that the 

handgun was operable. Armstrong, 263 Va. at 584, 562 S.E.2d 

at 145. The certificate of analysis identified the specific 

model of the handgun. Kingsbur considered it a handgun 

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because he did not want a child to "[get] ahold of it" and, as 

a convicted felon, he knew he should not get caught with it. 

This evidence supports a finding that the handgun Kingsbur 

possessed was designed, made, and intended to expel a 

projectile by means of an explosion. 

The evidence Kingsbur cites to support his position falls 

far short of the exceptional circumstance identified in 

Armstrong. The evidence of inoperability because of the 

missing parts indicates in this case, as it did in Armstrong, 

that the handgun could have been repaired. Id. at 584, 562 

S.E.2d at 146. Kingsbur's testimony that the chambers of the 

handgun "just fell off of it" is insufficient to support a 

finding that the handgun in question lost its characteristic 

as a firearm. Furthermore, the arresting officer testified 

that the handgun appeared to be "intact," and the certificate 

of analysis did not reflect that the handgun was in more than 

one piece. 

 For the above reasons, we hold that the trial court did 

not err in concluding that the handgun in issue was a firearm 

for purposes of Code § 18.2-308.2 and in refusing to grant 

Kingsbur's motion to strike. 

 Accordingly the judgment of the Court of Appeals is 

affirmed. 

Affirmed.