COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Annunziata 

Argued at Salem, Virginia 

CARL HENRY DILLARD 

 OPINION BY 

v. Record No. 1938-97-3 JUDGE JERE M. H. WILLIS, JR. 

 SEPTEMBER 22, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Jonathan M. Apgar, Judge 

 Roger Dalton, Senior Assistant Public 

Defender (Office of the Public Defender, on 

briefs), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 On appeal from his conviction of possession of a sawed-off 

shotgun, in violation of Code § 18.2-300(B), Carl Henry Dillard 

contends that the evidence failed to prove one of the statutorily 

required elements defining "sawed-off shotgun" and was, thus, 

insufficient as a matter of law to support his conviction. We 

reverse and remand. 

I. BACKGROUND 

 Code § 18.2-300(B) provides, in pertinent part: 

 Possession or use of a "sawed-off" 

shotgun . . . , except as permitted by this 

article and official use by those persons 

permitted possession by § 18.2-303, is a 

Class 4 felony. 

 Code § 18.2-299 defines "sawed-off shotgun" as follows: 

 "'Sawed-off' shotgun" applies to any weapon, 

loaded or unloaded, originally designed as a 

shoulder weapon, utilizing a self-contained 

cartridge from which a number of ball shot 
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pellets or projectiles may be fired 

simultaneously from a smooth or rifled bore 

by a single function of the firing device and 

which has a barrel length of less than 

eighteen inches for smooth bore weapons and 

sixteen inches for rifled weapons. Weapons 

of less than .225 caliber shall not be 

included.

(Emphasis added). 

 On July 13, 1996, Roanoke City Police Sergeant K.L. Wood 

responded to a report of gunfire and discovered Dillard in a 

prone position pointing a shotgun at two police officers. Wood 

secured the shotgun and arrested Dillard. 

 The case was tried without a jury. At trial, the weapon was 

described as a "Stevens, model 67, series E, 12 gauge shotgun," 

originally designed as a shoulder weapon, "shoot[ing] a 

self-contained shotgun pellet," with a smooth bore and a barrel 

length of 16.5 inches. At the conclusion of the Commonwealth's 

case-in-chief, Dillard moved to strike the evidence on the ground 

that the Commonwealth had failed to prove the shotgun was at 

least .225 caliber. The trial court denied this motion, ruling 

that the .225 caliber requirement is an affirmative defense. 

During closing argument, Dillard renewed the motion. The trial 

court reiterated its ruling and found Dillard guilty of 

possession of a sawed-off shotgun. 

 Dillard contends that the statutory definition of a 

sawed-off shotgun required the Commonwealth to prove that the 

weapon he possessed was at least .225 caliber and that the 

evidence failed as a matter of law to prove that element. The 
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Commonwealth contends that the first sentence of the definition 

of "sawed-off shotgun" contained in Code § 18.2-299 defines the 

weapons covered and that the second sentence, containing the .225 

caliber criterion, defines an affirmative defense. The 

Commonwealth further contends that even were it required to prove 

that the weapon was at least .225 caliber, the evidence proved 

that element. 

 We hold that the .225 caliber criterion is an element of the 

definition of a "sawed-off shotgun" and, as such, must be proved 

by the Commonwealth. However, we find that the evidence was not 

insufficient as a matter of law to prove this element. Because 

the trial court did not consider the sufficiency of the evidence 

to prove this element, we reverse Dillard's conviction and remand 

the case to the trial court. 

II. AFFIRMATIVE DEFENSE 

 Code §§ 18.2-299 and 18.2-300(B) do not state specifically 

whether the .225 caliber requirement is an element of the 

offense. While we construe penal statutes strictly against the 

Commonwealth, "a statute should be read to give reasonable effect 

to the words used 'and to promote the ability of the enactment to 

remedy the mischief at which it is directed.'" Mayhew v. 

Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995) 

(citations omitted). Thus, we consider whether the exclusion of 

weapons of less than .225 caliber from the statutory definition 

of a sawed-off shotgun constitutes a negative element of that 
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definition, which the Commonwealth must disprove, or an 

affirmative defense, which an accused may assert to defeat the 

prosecution's prima facie case. 

 In Mayhew, we identified four factors to be considered in 

determining whether specific limiting language is an element of 

an offense or an affirmative defense: 

 "[1] [T]he wording of the exception and its 

role in relation to the other words of the 

statute; [2] whether in light of the 

situation prompting legislative action, the 

exception is essential to complete the 

general prohibition intended; [3] whether the 

exception makes an excuse or justification 

for what would otherwise be criminal conduct, 

i.e., sets forth an affirmative defense; and 

[4] whether the matter is peculiarly within 

the knowledge of the defendant." 

Id. at 490, 458 S.E.2d at 308 (quoting Commonwealth v. Stoffan, 

323 A.2d 318, 324 (Pa. Super. Ct. 1974)). Considering these 

factors and viewing the language and structure of the statute in 

relation to the "'Sawed-Off' Shotgun and 'Sawed-Off' Rifle Act" 

(Act) as a whole, we conclude that the .225 caliber requirement 

is a negative element of the definition of a sawed-off shotgun. 

 (1) Code § 18.2-300(B) defines the crime: possession or use 

of a sawed-off shotgun as defined in Code § 18.2-299. Code 

§ 18.2-299 states, inter alia, that: "Weapons of less than .225 

caliber shall not be included." (Emphasis added). The statute, 

as originally enacted in 1968, contained this provision. 

Although expressed in an unnecessarily bifurcated fashion, the 

definition, comprised of two adjoining sentences set apart from 
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the other defined terms, is a cohesive unit from which the fact 

finder must determine whether a given weapon is a sawed-off 

shotgun under the Act. See Rogers v. Commonwealth, 14 Va. App. 

774, 776, 418 S.E.2d 727, 728 (1992) ("The barrel length of this 

weapon was eleven and one-eighth inches, and its bore was greater 

than .225 caliber in diameter. The weapon therefore fell within 

the statutory definition of a 'sawed-off shotgun.'"). 

 The second sentence of Code § 18.2-299 excludes from the 

definition of "sawed off shotgun" weapons "of less than .225 

caliber." Thus, the second sentence, setting forth the .225 

caliber requirement, is a part of the statutory definition that 

the Commonwealth must prove. 

 Significantly, Code § 18.2-300(B) also sets forth the 

exceptions to the proscribed conduct by the phrase "except as 

permitted by this article and official use by those persons 

permitted possession by § 18.2-303." Code § 18.2-303, entitled 

"What article does not apply to," provides for the use of 

sawed-off shotguns by military and law enforcement personnel, and 

Code § 18.2-303.1, entitled, "What article does not prohibit," 

sets forth exceptions for civilian possession of a sawed-off 

shotgun. See Rogers, 14 Va. App. at 776, 418 S.E.2d at 728 ("The 

only exceptions to the proscription of civilian possession of 

sawed-off shotguns are the defenses set forth in Code 

§ 18.2-303.1."). 

 (2) While "the broad sweep of the [Act] reflects a 
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legislative determination that sawed-off shotguns are highly 

dangerous and have no legitimate sporting use," id., the 

legislature concluded that weapons of less than .225 caliber do 

not warrant categorization as a "'sawed-off' shotgun." In 

setting forth the general prohibition, the Act states in detail 

which weapons are prohibited, providing different proscribed 

lengths for smooth and rifled bore weapons. Such precision 

illustrates the legislature's intention that the fact finder 

examine each portion of the definition to determine whether a 

particular weapon falls within the purview of the Act. 

 (3) The .225 caliber requirement does not "'make[] an excuse 

or justification for what would otherwise be criminal conduct.'" 

Mayhew, 20 Va. App. at 490, 458 S.E.2d at 308 (quoting Stoffan, 

323 A.2d at 324). No person can be convicted for conduct 

proscribed by the Act, i.e. possession of a sawed-off shotgun, or 

be expected to present an affirmative defense to such conduct, 

unless he first possesses a shotgun meeting the definition set 

forth in Code § 18.2-299. 

 (4) The caliber of the shotgun is not a matter "'peculiarly 

within the knowledge of the defendant.'" Id. (quoting Stoffan, 

323 A.2d at 324). The caliber of the shotgun is easily 

determined. 

 Accordingly, the trial court erred in ruling that the 

limiting language contained in the definition constituted an 

affirmative defense. In prosecutions for possession of a 
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sawed-off shotgun under Code § 18.2-300, the Commonwealth must 

prove that the subject weapon falls within the statutory 

definition set forth in Code § 18.2-299, including the 

requirement that it be not less than .225 caliber. 

III. SUFFICIENCY OF THE EVIDENCE 

A. JUDICIAL NOTICE 

 The Commonwealth contends that the trial court could have 

taken judicial notice that a twelve gauge shotgun, such as the 

one possessed by Dillard, has a caliber greater than .225 and 

that the court's authority to take such notice provided proof of 

the fact. We disagree. 

 The trial court did not actually take judicial notice of the 

relative dimensions of twelve gauge and .225 caliber. Rather, it 

ruled that the Commonwealth was not required to prove that the 

shotgun was at least .225 caliber. While a trial court need not 

intone the words "judicial notice" in order to notice a fact, the 

evidence, the arguments of the parties and the statements of the 

trial court must demonstrate clearly that the trial court has 

taken judicial notice of the fact before a party may rely upon 

such notice on appeal. See Keesee v. Commonwealth, 216 Va. 174, 

175, 217 S.E.2d 808, 810 (1975) (per curiam); Sutherland v. 

Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295, 298 (1988). 

Because the trial court did not take judicial notice that the 

shotgun met the .225 caliber requirement, we cannot uphold the 

conviction on that basis. 
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B. SUFFICIENCY OF THE EVIDENCE 

 Dillard contends that the Commonwealth failed, as a matter 

of law, to prove that the shotgun he possessed was at least .225 

caliber. We disagree. 

 The issue is whether proof that a shotgun is twelve gauge 

is, ipso facto, proof that it is not less than .225 caliber. The 

terms "gauge" and "caliber" are expressions of standard 

measurements used commonly in regard to firearms and have 

customary and accepted meanings.1

 These uniform terms are 

susceptible of ready verification by resort to standard 

references, such as dictionaries. While the specifications are 

based on different methods of calculation and are expressed in 

different terms, they are, nonetheless, readily convertible. For 

example, the barrel of a twelve gauge shotgun has an interior 

diameter of approximately .729 inches -- a measurement greater 

than .225 caliber. Webster's Third New International Dictionary 

of the English Language Unabridged 940 (1961). 

 We need not stray from the record on appeal to conclude that 

Dillard's shotgun met the .225 caliber requirement. Viewing "the 

evidence in the light most favorable to the Commonwealth, 

 

 1"Caliber" is defined as "the diameter of a bore of a gun 

usu[ally] expressed in modern U. S. and British usage in 

hundredths or thousandths of an inch and typically written as a 

decimal fraction." Webster's New Collegiate Dictionary 157 

(1977). "Gauge" is defined as "the size of a shotgun expressed 

as the number in a pound of round lead balls of a size to just 

fit into the barrel." Webster's Third New International 

Dictionary of the English Language Unabridged 940 (1961). 
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granting to it all reasonable inferences fairly deducible 

therefrom," Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987), we find the evidence sufficient to prove 

that the shotgun was not less than .225 caliber. The 

Commonwealth proved that Dillard possessed a twelve gauge 

shotgun. Because a twelve gauge shotgun has a caliber greater 

than .225, proof that the shotgun was twelve gauge was sufficient 

to prove that it was greater than .225 caliber. 

IV. CONCLUSION 

 By ruling that the .225 caliber criterion defined an 

affirmative defense, the trial court reversed the burden of proof 

with respect to that issue. Thus, it did not address the 

sufficiency of the Commonwealth's proof regarding that issue and 

did not find that the Commonwealth had proved that element beyond 

a reasonable doubt. Accordingly, we reverse the judgment of the 

trial court and remand this case to the trial court for retrial 

on all issues, if the Commonwealth be so advised. 

 Reversed and remanded.