COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Barrow,* Benton, 

 Koontz, Willis, Elder, Bray and Fitzpatrick 

Argued at Richmond, Virginia 

LYNWOOD LEE MAIN 

 

v. Record No. 0373-93-2 OPINION BY 

 JUDGE BERNARD G. BARROW 

COMMONWEALTH OF VIRGINIA MAY 16, 1995 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Lauren A. Caudill (Morchower, Luxton & Whaley, on 

 brief), for appellant. 

 G. Russell Stone, Jr., Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 We granted a rehearing en banc in this criminal appeal 

because of a dissent in the panel decision.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 one's back pocket, covered by a duffle bag, 

constitutes carrying a concealed weapon if the handle of the 

weapon, the only part of the weapon extending outside of the 

pocket, is concealed by the duffle bag. 

 Carrying a pistol, "hidden from common observation," without 

 

 *Judge Bernard G. Barrow participated in the hearing and 

decision of this case, and prepared the opinion prior to his 

death. 

 1Main v. Commonwealth, 19 Va. App. 272, 450 S.E.2d 772 

(1994). 
- 2 - 

a permit to do so, is unlawful. Code § 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 

defendant in his vehicle. The police officer was driving on the 

right side of the road. The defendant was walking away from him 

on the left side of the road. Therefore, the officer could see 

the defendant's right side and rear. The officer did not see a 

weapon on the defendant; however, he did see a blue duffle bag 

that hung from a strap across the defendant's shoulder. The 

duffle bag "hung down about waist level and hip level on [the 

defendant's] right side." 

 The officer stopped, got out of his vehicle, and approached 

the defendant from the 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 turned 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 testified that he did not see the gun when 
- 3 - 

he first saw the defendant because "of the bag over his right 

side." Similarly, the trial court could have reasonably 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 pocket and its 

handle, the only part extending outside of his pocket, was 

covered by the duffle bag, the weapon was hidden from common 

observation. It was hidden from all except those with an unusual 

or exceptional opportunity to view it. The defendant had no 

permit to carry a weapon so hidden from public view. Therefore, 

his concealment of it in this fashion was unlawful. 

 The judgment of conviction is affirmed. 

 Affirmed. 

 

 2On appeal, we must not only view the evidence in the light 

most favorable to the prosecution, 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) 
- 4 - 

Koontz, J., with whom Benton, and Elder, JJ., join, dissenting. 

 I respectfully dissent. The essential facts are not in 

dispute. Although Officer Dickerson initially was unable to see 

the weapon in Main's pocket "because of the bag over his right 

side," the officer instantly saw and recognized the weapon 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 

weapon 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.