COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, 

 Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements 

 and Agee 

Argued at Richmond, Virginia 

ERIC WAYNE ARMSTRONG 

 OPINION BY 

v. Record No. 1388-99-3 JUDGE G. STEVEN AGEE 

 JULY 31, 2001 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF HIGHLAND COUNTY 

Duncan M. Byrd, Jr., Judge 

 Ronald W. Vaught for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Eric Wayne Armstrong, appellant, was convicted in a bench 

trial of possession of a firearm by a convicted felon, in 

violation of Code § 18.2-308.2.1 He contends the evidence was 

insufficient to prove that the object he possessed was a firearm 

because it was not "operable." 

 In an unpublished opinion, a divided panel of this Court 

affirmed the conviction. Armstrong v. Commonwealth, No. 

1388-99-3 (Va. Ct. App. Nov. 21, 2000). However, we stayed the 

 1

 Appellant was also convicted of possession of marijuana, 

in violation of Code § 18.2-250.1, which is not the subject of 

this appeal. 
mandate of that decision and granted a rehearing en banc. Upon 

rehearing en banc, the stay of the mandate is lifted, and the 

judgment of the trial court is affirmed for the reasons set 

forth below. 

I. 

 "Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to it all reasonable 

inferences fairly deducible therefrom." Green v. Commonwealth, 

32 Va. App. 438, 442, 528 S.E.2d 187, 189 (2000) (citing Juares 

v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 

(1997)). 

 So viewed, the evidence established that during a search of 

the appellant's residence on February 12, 1998, Sheriff Herbert 

Lightner of Highland County observed what appeared to be a 

semi-automatic .22 caliber rifle and a BB gun inside a gun 

cabinet. The gun cabinet was not opened, and neither gun was 

examined. Neither the rifle nor the BB gun was seized at that 

time. 

 The appellant, who had a prior felony conviction, was later 

charged with possession of a firearm by a convicted felon.2 At 

the preliminary hearing, defense counsel delivered the two 

weapons to the sheriff. No one test-fired the guns. At trial, 

 

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2

 At trial, the Commonwealth did not rely upon the BB gun as 

the basis for the firearm conviction. 
Sheriff Lightner testified that the .22 caliber rifle appeared 

to be the same weapon he saw at the appellant's house. 

 Melvin Eugene Armstrong, the appellant's cousin, testified 

at trial that the .22 caliber rifle belonged to him. Melvin 

stated that he purchased the rifle at K-Mart in October 1997 and 

produced a receipt from the store with a serial number matching 

the number on the rifle. Melvin, who was in the military at the 

time, explained that the rifle "wouldn't fire." He testified: 

"You could pull the trigger but the gun won't go off. . . . 

[T]he firing pin ain't [sic] hitting the casing so I assume it's 

got something to do with the spring in there or the firing pin 

one." He said that while he was out hunting, "it just stopped 

shooting." 

 The appellant did not dispute the existence of his prior 

felony conviction or his possession of the rifle. Instead, he 

argued that the rifle was not a "firearm" within the meaning of 

Code § 18.2-308.2 because it was not presently operable: "If 

the gun is not operable, and it's unconditional evidence . . . , 

then it's not a firearm." 

 The trial court disagreed and found the appellant guilty of 

possession of a firearm by a convicted felon. 

II. 

 On appeal, the appellant concedes that the rifle was 

"designed or intended to expel a projectile by discharge or 

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explosion of gun powder."3 However, he contends the gun was 

"inoperable" based upon the "credible, affirmative, and 

unrebutted" testimony of Melvin Armstrong. Accordingly, the 

appellant concludes, the evidence was insufficient to sustain 

his conviction. 

 The Commonwealth contends the trial court was free to 

disbelieve Melvin Armstrong's testimony that the rifle "wouldn't 

fire." The Commonwealth further argues that Sheriff Lightner's 

testimony that he saw the .22 caliber rifle was sufficient to 

convict the appellant of this offense. We agree with the trial 

court's finding but for different reasons than articulated by 

it. 

 Code § 18.2-308.2, at the time of the offense, provided 

that it was unlawful for a previously convicted felon to 

"knowingly and intentionally possess or transport any firearm." 

The statute does not contain a definition of "firearm." 

 In Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615,

aff'd on reh'g en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993), 

we held: 

Code § 18.2-308.2 prohibits a felon from 

possessing a device that has the actual 

capacity to do serious harm because of its 

ability to expel a projectile by the power 

of an explosion, and it is not concerned 

with the use or display of a device that may 

have the appearance of a firearm. 

Therefore, we hold that the term "firearm" 

 

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3

 The appellant does not contest that he was in possession 

of the .22 caliber rifle. 
as used in Code § 18.2-308.2 is used in its 

traditional sense. The statute does not 

seek to protect the public from fear of harm 

caused by the display of weapons; rather, it 

is concerned with preventing a person, who 

is known to have committed a serious crime 

in the past, from becoming dangerously 

armed, regardless of whether that person 

uses, displays, or conceals the firearm. 

"It shall be unlawful for any person who has 

been convicted of a felony . . . to . . . 

possess or transport any firearm or to . . . 

carry about his person, [even if] hid[den] 

from common observation, any weapon 

described in § 18.2-308 A." 

Id. at 357-58, 429 S.E.2d at 617 (quoting Code § 18.2-308.2(A)). 

 Subsequent panel decisions of this Court have enlarged the 

holding in Jones, which held that a BB gun was not within the 

"traditional definition of a firearm" for purposes of Code 

§ 18.2-308.2. In Gregory v. Commonwealth, 28 Va. App. 393, 504 

S.E.2d 886 (1998), however, we diverted from the holding in 

Jones and required the Commonwealth to prove the following 

elements in order to convict a felon for possession of a 

firearm: 

(1) that the weapon is designed or intended 

to expel projectiles by the discharge or 

explosion of gunpowder, and (2) that it is 

capable of doing so. 

Id. at 400, 504 S.E.2d at 889. We reiterated these two elements 

of required proof in Williams v. Commonwealth, 33 Va. App. 796, 

537 S.E.2d 21 (2000). 

The Commonwealth must initially prove that 

the accused possessed an object manufactured 

for the purpose of expelling a projectile by 

an explosion, namely, a firearm. It then 

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must prove that the firearm is operational 

or can readily be made operational. 

Id. at 807, 537 S.E.2d at 26 (citation omitted). In furtherance 

of this second element, we explained: 

[T]he statute prohibits felons from 

possessing actual firearms that are 

presently operational or can readily or 

easily be made operational or capable of 

being fired with minimal effort and 

expertise. 

Id. at 806-07, 537 S.E.2d at 26. It is this latter judicially 

created element of proof, that the felon's weapon is "presently 

operational," that is contrary to the plain language of the 

statute and has caused unnecessary confusion. 

 In the context of related statutes, the ready capability 

element has been phrased as "operable" or operable "on a 

moment's notice." Where the firearm, a sawed-off shotgun, 

lacked a firing pin in Rogers v. Commonwealth, 14 Va. App. 774, 

418 S.E.2d 727 (1992), we held that the gun was close enough to 

actual firing capacity to justify a conviction for possession of 

the firearm in violation of Code § 18.2-300 (the Sawed-off 

Shotgun Act). Similarly in Timmons v. Commonwealth, 15 Va. App. 

196, 421 S.E.2d 894 (1992), we held that the absence of the 

gun's ammunition clip did not deprive the firearm of its status 

as operable and, thus, we sustained the defendant's conviction 

under Code § 18.2-308.4 (possession of a firearm while in 

possession of cocaine). Yet, in Williams, we held that the 

element of operability was not proven where the convicted 

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felon's gun was too rusty to fire at the time of his arrest. We 

reversed Williams' conviction for possessing the firearm. 33 

Va. App. at 808, 537 S.E.2d at 27. 

 Contrasted with offenses committed in violation of Code 

§ 18.2-53.1, the act of firearm possession under Code 

§ 18.2-308.2 (or related statutes) involves no perception 

element by a victim.4 The crime is complete by the felon's 

possession of the weapon. The statute is interpreted in this 

fashion to further the legislative intent of keeping firearms 

 4

 Our decisions, as well as those of the Supreme Court of 

Virginia, have read the term "firearm," as used in Code 

§ 18.2-53.1, to include "anything that the victim reasonably 

perceives to be a firearm, even though it may not in actuality be 

a weapon or be capable of firing a projectile by any means." 

Holloman v. Commonwealth, 221 Va. 196, 199, 269 S.E.2d 356, 358 

(1980). Operability or actual capacity of the firearm to fire is 

not an element of a violation of Code § 18.2-53.1, which 

prohibits any person (not just felons) from using a firearm while 

committing a felony. Accordingly, unlike the result in Williams, 

we held in Miller v. Commonwealth, 23 Va. App. 208, 475 S.E.2d 

828 (1996), that a rusty, inoperable revolver used in a robbery 

was a firearm under Code § 18.2-53.1. We affirmed the trial 

court's finding that the rust on the gun did not affect its 

appearance and that the weapon had not "lost its identity as a 

firearm." Id. at 213, 475 S.E.2d at 830. 

Jones differentiated a "firearm" in the possession of a 

convicted felon under Code § 18.2-308.2 from a "firearm" used in 

the commission of a felony under Code § 18.2-53.1. The basis for 

the distinction is not whether a weapon "designed or intended to 

expel projectiles by the discharge or explosion of gunpowder" 

actually works at the time of a felonious act. Rather, the 

distinction is that whatever object is used to perpetrate a 

felony (robbery, for instance) must reasonably create the 

perception in the victim of fear of harm. The victim must 

perceive the toy gun as a real firearm in order for the would-be 

robber to engender the necessary threat and intimidation to 

successfully complete his task and also be guilty of violating 

Code § 18.2-53.1. 

 It is for this reason that the Supreme Court of Virginia in 

Holloman held the use of a BB gun, while not within the 

traditional definition of a firearm, was a "firearm" in the 

reasonable perception of the victim of a robbery and, therefore, 

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out of the hands of convicted felons. Jones concisely sets out 

the General Assembly's intent in adopting Code § 18.2-308.2: 

[I]t is concerned with preventing a person, 

who is known to have committed a serious 

crime in the past, from becoming dangerously 

armed, regardless of whether that person 

uses, displays, or conceals the firearm. 

16 Va. App. at 358, 429 S.E.2d at 617. 

 Nothing in this statement of policy, or in the plain 

language of the statute, bifurcates convicted felons with 

firearms into classes of those (1) possessing firearms ready to 

fire immediately, or (2) possessing firearms which can fire with 

some repairs or adjustments. 

 Further, because there is no victim perception element to 

Code § 18.2-308.2, as there is under Code § 18.2-53.1, there is 

no public policy or legislative intent to find a felon who 

possesses a BB gun, a squirt gun or a plastic toy gun to be in 

possession of a firearm. That is all the Jones decision held. 

When the General Assembly used the term "firearm" in Code 

§ 18.2-308.2, it meant a "firearm" is a firearm under that 

statute if it was made to shoot bullets, not BBs or tap water. 

 Had later interpretations of Jones limited the holding to 

devices such as toy weapons, squirt guns or BB guns, those 

decisions may not have run afoul of the plain meaning of the 

statute or created the byzantine network of decisions which has 

 

was a firearm for purposes of Code § 18.2-53.1. 221 Va. at 198, 

269 S.E.2d at 358. 

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since evolved. The aftermath of Jones has seen creative 

findings of circumstantial proof with regard to the operability 

of the accused felon's firearm which are not only difficult to 

reconcile, but also provide little guidance to the trial courts. 

For instance, in Redd v. Commonwealth, 29 Va. App. 256, 511 

S.E.2d 436 (1999), no gun was seized from Redd or produced at 

her trial for possession of a firearm by a previously convicted 

felon. Nonetheless, Redd's threat to kill the clerk and her 

placing a "long black gun" on the store counter was sufficient 

to justify the inference that the object was an operable 

firearm. In Taylor v. Commonwealth, 33 Va. App. 735, 536 S.E.2d 

922 (2000), a case under Code § 18.2-308.4, the defendant's 

exposure of a firearm tucked in his waistband was sufficient to 

permit the inference that it was a functional, operational 

firearm and sustain a conviction. As a corollary, decisions 

such as Rogers, Timmons, Gregory and Williams reflect a highly 

subjective approach in determining whether a felon's gun, which 

is in evidence at trial, is sufficiently close to firing status 

to justify a conviction. 

 Code § 18.2-308.2 prohibits a convicted felon "to knowingly 

and intentionally possess or transport any firearm." (Emphasis 

added). While the statute does not define firearm, the adjacent 

"instant check" statute, Code § 18.2-308.2:2, provides "firearm 

means any handgun, shotgun or rifle which expels a projectile by 

action of an explosion." Similarly, the plain dictionary 

 - 9 - 
meaning of "firearm" is: "A weapon that expels a projectile 

(such as a bullet or pellets) by the combustion of gunpowder or 

other explosive." Black's Law Dictionary 648 (7th ed. 1999). 

Nothing in these or similar definitions bifurcates firearms into 

actual operational and not fully functional categories. 

 The application of Jones in subsequent cases has created a 

body of law that is contrary to the plain meaning of the statute 

and attributes a legislative intent where none exists. The 

practical result of the "operability" element has left a 

confusing zigzag trail for the trial courts to decipher. This 

is particularly apparent in decisions like Redd and Taylor where 

no gun is in evidence and there is no direct evidence as to 

whether the weapon functions, but an inference of operability 

may be drawn. For instance, if, in Redd, the only action of the 

accused had been to place the weapon on the store counter 

without a verbal threat, could an inference of operability 

properly be drawn? 

 Even in cases where the gun is introduced into evidence, 

the question of operability engenders innumerable scenarios as 

to when or if the weapon could become operable or capable of 

firing. Did the legislature intend there to be a time test, 

under Code § 18.2-308.2, on the felon's personal ability to make 

the weapon operable? If the weapon required more than the 

insertion of the firing pin or ammunition clip, would the 

weapon's operability be judged by the felon's ability to make 

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the weapon fire, his access to contacts who could perform that 

function or his financial ability to retain a gunsmith who could 

timely do so? Would the felon be required to be able to make 

the weapon operable within a given time period (ten minutes or 

ten hours)? It cannot be said that the General Assembly 

"intended" such a test where the clear and unambiguous meaning 

of the statute is to prohibit a felon from possessing any

firearm. 

 When the legislature has spoken plainly 

courts may not change or amend legislative 

enactments under the guise of construing 

them. The province of construction lies 

wholly within the domain of ambiguity. 

There is no ambiguity in the language that 

forbids a convicted felon to carry a 

firearm. That which is plain needs no 

interpretation. Winston v. City of 

Richmond, 196 Va. 403, 407-08, 83 S.E.2d 

728, 731 (1954). 

Jones, 16 Va. App. at 358, 429 S.E.2d at 617. 

 The General Assembly included no language in the statute to 

circumscribe the absolute prohibition of a convicted felon's 

possession of a firearm. It matters not whether the gun's 

current condition is "operable" or "inoperable" or whether a can 

of WD-40 or the local gunsmith could render the firearm fully 

functional. 

 In a prosecution under Code § 18.2-308.2, once the 

Commonwealth proves the accused is a convicted felon who 

possessed an object made to "expel a projectile by the 

combustion of gunpowder or other explosive," then it has proven 

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all the necessary elements of the crime based on the plain 

language of the statute. When enacting Code § 18.2-308.2, the 

General Assembly's intent was clear: A felon cannot possess any

firearm. Had the legislature wished to draw a distinction 

between operable and inoperable firearms, it would have done so 

with clear and distinct language. It did not, and neither did 

Jones. The reference in Jones to a firearm's "actual capacity 

to do serious harm" relates to "a weapon designed or intended to 

expel projectiles by the discharge or explosion of gunpowder" 

not to a separate requirement of operability. 

 As the foregoing reflects, we have made a detailed inquiry 

finding "a mistake exists in our prior decisions." Accordingly, 

we exercise the clear authority under Code § 17.1-402(D) to 

overrule those decisions. 

 We overrule Gregory and Williams to the extent such cases 

are read to require the Commonwealth to prove as an element of 

violating Code § 18.2-308.2 that the convicted felon's firearm 

was presently operational, was capable of being fired, could be 

readily converted to firing or could readily be made 

operational.5 We hold Jones established no such requirement. To 

the extent Jones is read inconsistently with this opinion, Jones

is also overruled. 

 

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5

 The same rule shall apply in prosecutions under Code 

§§ 18.2-300 and 18.2-304.4 so that no proof of operability of 

the sawed-off shotgun, sawed-off rifle or firearm, as 

applicable, shall be required. 
 The dissent's inference that the United States 

Constitution's ex post facto protection is somehow implicated by 

our decision is inaccurate. None of the cases cited stand for 

that proposition, particularly where a prior panel decision is 

overruled en banc on the basis of clear error in application of 

a statute. Moreover, the appellant's conviction in the case at 

bar is based on acts committed prior to the decisions in Gregory

and Williams. 

 Code § 18.2-308.2 only requires the Commonwealth to prove, 

as elements of the crime, that the accused is a convicted felon 

and that he or she possessed an object which was made with the 

purpose to expel a projectile by gunpowder or other explosion. 

In the case at bar, the Commonwealth proved these elements at 

trial and, therefore, the appellant's conviction is affirmed. 

Affirmed. 

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Benton, J., dissenting. 

 Applying Code § 18.2-308.2, a panel of this Court in Jones 

v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993), noted 

that "[t]he legislature has assigned various meanings to the 

term 'firearm' in [different] sections of Title 18.2," id. at 

356, 429 S.E.2d at 615-16, and concluded that "whether the term 

'firearm' when used in a statute without being defined is to be 

given its traditional meaning or a more expansive meaning 

depends upon the purpose and policy underlying the particular 

statute." Id. at 357, 429 S.E.2d at 616. Based upon a review 

of the various statutes, the decision further concluded as 

follows: 

[W]hen a statute is designed only to 

proscribe the act of possessing a firearm or 

the conduct of a felon in order to reduce a 

real threat of harm to the public, a 

narrower, more traditional definition of 

"firearm" is required. See Timmons v. 

Commonwealth, 15 Va. App. 196, 200-01, 421 

S.E.2d 894, 897 (1992) ("firearm" under 

statute penalizing the possession of a 

firearm while in possession of cocaine does 

not include "'any object' that [appears to 

have] capability of firing a projectile, 

even if it lacks that capability"). 

Id. 

 It was in the context of a review of all the firearm 

statutes that Jones construed the term "firearm" in Code 

§ 18.2-308.2 and held the following: 

 Code § 18.2-308.2 prohibits a felon from 

possessing a device that has the actual

capacity to do serious harm because of its 

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ability to expel a projectile by the power 

of an explosion, and it is not concerned 

with the use or display of a device that may 

have the appearance of a firearm. 

Therefore, we hold that the term "firearm" 

as used in Code § 18.2-308.2 is used in its 

traditional sense. The statute does not 

seek to protect the public from fear of harm 

caused by the display of weapons; rather, it 

is concerned with preventing a person, who 

is known to have committed a serious crime 

in the past, from becoming dangerously 

armed, regardless of whether that person 

uses, displays, or conceals the firearm. 

Id. at 357-58, 429 S.E.2d at 617 (emphasis added). We affirmed 

that decision en banc. Jones v. Commonwealth, 17 Va. App. 233, 

436 S.E.2d 192 (1993) (en banc). 

 In the eight years since Jones, neither the Supreme Court 

nor the legislature has reviewed or changed the definition of 

firearm that Jones applied to Code § 18.2-308.2. Indeed, 

because the General Assembly has revised the firearm statutes on 

several occasions without any indication that it has disagreed 

with our definition, "the General Assembly is presumed to use 

the language as judicially defined." Williams v. Fairfax Co. 

Hous. Auth., 227 Va. 309, 314, 315 S.E.2d 202, 205 (1984). See

also Burns v. Stafford County, 227 Va. 354, 360, 315 S.E.2d 856, 

860 (1984). 

 Our decisions in Williams v. Commonwealth, 33 Va. App. 796, 

537 S.E.2d 21 (2000), and Gregory v. Commonwealth, 28 Va. App. 

393, 504 S.E.2d 886 (1998), have been faithful to the definition 

of firearm that we used in Jones and based on the construction 

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of the statutes. The decision in Williams particularly and 

thoroughly analyzed Jones and the cases that followed Jones in 

determining the type of weapon which is proscribed by Code 

§ 18.2-308.2. See 33 Va. App. at 800-08, 537 S.E.2d at 23-27. 

 The majority now interprets Code § 18.2-308.2 to require 

"only [that] . . . the Commonwealth . . . prove, as elements of 

the crime, that the accused is a convicted felon and that he or 

she possessed an object which was made with the purpose to expel 

a projectile by gunpowder or other explosion." Although the 

majority professes to follow Jones, it has eliminated the 

significant element of that decision's holding, the "actual 

capacity" of the firearm to operate. Simply put, the majority 

opinion has re-defined the term "firearm" as used in statutes we 

analyzed in Williams, Gregory, and Jones. 

 Regardless of whether the majority overrules Jones and its 

progeny or merely overrules Williams and Gregory, the majority 

makes no clear "inquiry . . . whether flagrant error or mistake 

exists in the [prior] decision[s]." Pulliam v. Coastal 

Emergency Servs., 257 Va. 1, 10, 509 S.E.2d 307, 312 (1999). 

Those decisions have stood "without any indication to the bench, 

the bar, or the public that flagrant error or mistake exists in 

the decision[s]." Id. at 25, 509 S.E.2d at 321. Indeed, the 

Commonwealth in this case does not challenge the definition of 

"firearm" enunciated in Jones, Williams, and Gregory. These 

factors indicate that the principle needs no revision. 

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Furthermore, the majority has chosen to jettison precedent, not 

in a tort or contract case involving the payment or non-payment 

of money to a party, but in a criminal case involving the 

liberty of a citizen of the Commonwealth. 

 Although, strictly speaking, judicial decisions do not 

implicate the Ex Post Facto Clause of the United States 

Constitution, see United States v. Wasserman, 504 F.2d 1012, 

1015 (5th Cir. 1974) (citing James v. United States, 366 U.S. 

213, 247-48 (1961) (separate opinion of JJ. Harlan and 

Frankfurter)), the same considerations bind the judiciary. 

Indeed, the United States Supreme Court has held as follows: 

[A]n unforeseeable judicial enlargement of a 

criminal statute, applied retroactively, 

operates precisely like an ex post facto 

law, such as Art. I, § 10, of the 

Constitution forbids. An ex post facto law 

has been defined by this Court as one 'that 

makes an action done before the passing of 

the law, and which was innocent when done, 

criminal; and punishes such action,' or 

'that aggravates a crime, or makes it 

greater than it was, when committed.' If a 

state legislature is barred by the Ex Post 

Facto Clause from passing such a law, it 

must follow that a State Supreme Court is 

barred by the Due Process Clause from 

achieving precisely the same result by 

judicial construction. 

Bouie v. City of Columbia, 378 U.S. 347, 353 (1964) (citation 

omitted). 

 Prior to today's decision, the Commonwealth had to prove 

two discrete elements to demonstrate the existence of a firearm 

to convict an accused under Code § 18.2-308.2. Gregory, 28 Va. 

 - 17 - 
App. at 400, 504 S.E.2d at 889. With the majority opinion's 

elimination of the "actual capacity" requirement from Jones, the 

Commonwealth will only have to prove one element. Such a 

radical lowering of the threshold for conviction changes the 

nature of the conduct proscribed and punishes conduct that was 

legal before the publication of the current opinion. As such, 

at the very least, it cannot apply in this case, where the 

evidence was insufficient to convict Armstrong under our prior 

interpretation of this statute. As stated in the dissent from 

the panel decision, "the Commonwealth failed to prove that 'the 

weapon could be readily rendered functional.'" Armstrong v. 

Commonwealth, No. 1388-99-3 (Va. Ct. App. Nov. 21, 2000) 

(quoting Williams, 33 Va. App. at 808, 537 S.E.2d at 27). 

Therefore, because the Commonwealth did not bear its burden of 

proof, we should reverse the conviction. 

 In conclusion, I believe that Jones and its progeny 

properly construed Code § 18.2-308.2 and that today's majority's 

view, which was not advanced on brief by either party, 

represents merely another way of looking at the same issue we 

previously decided. Its only compelling feature is that it has 

garnered a sufficient number of votes to overrule our prior 

decisions. 

 For these reasons, I would reverse the conviction. I 

dissent. 

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