COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Humphreys 

Argued at Richmond, Virginia 

JAMES JUNIOR FOUNTAIN 

 MEMORANDUM OPINION* BY 

v. Record No. 0262-01-2 JUDGE ROBERT J. HUMPHREYS 

 MAY 7, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Andrea S. Lantz, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

James Junior Fountain appeals his conviction, after a bench trial, 

for possession of a firearm after having been previously convicted 

of a felony, in violation of Code § 18.2-308.2.1 Fountain 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

1

 Fountain was charged with concealed possession of "a weapon 

designed or intended to propel a missile of any kind," after 

having been previously convicted of a felony, in violation of Code 

§ 18.2-308.2. Fountain was correctly indicted and arraigned on 

this charge. However, both the conviction and sentencing orders 

state that Fountain was convicted of being a "felon in possession 

of a firearm." The Commonwealth contends in their brief on appeal 

that the conviction and sentencing orders demonstrate a clerical 

error in this regard; we granted the Commonwealth leave to request 

that the trial court consider a motion to correct the orders, nunc

pro tunc, and the trial court entered the orders December 21, 

2001, nunc pro tunc, February 15, 2001, correcting the clerical 

error. Fountain does not challenge this on appeal and argues on 
contends the trial court erred in finding the evidence sufficient 

as a matter of law to support the conviction.2 We disagree and 

affirm the conviction. 

When the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider it in the light most 

favorable to the Commonwealth and give it all reasonable 

inferences fairly deducible therefrom. We should affirm the 

judgment unless it appears from the evidence that the judgment is 

plainly wrong or without evidence to support it.3 

 

So viewed, the evidence presented at trial established that on the 

evening of September 18, 1998, Officer John McKay, of the 

Albemarle Police Department, was patrolling the area of the Milton 

Boat Landing when he observed a vehicle parked at the bottom of 

the landing, past a sign indicating the area was closed. McKay 

found Fountain and a female inside the car, which he described as 

a "small, two seat" 1986 Nissan 300ZX. McKay informed Fountain 

that the area was closed and asked to see his driver's license. 

 

brief only that the weapon was not a "firearm" and that his 

conviction for "unlawfully, feloniously, knowingly and 

intentionally, after having been convicted of a felony, carrying 

on or about his person, hidden from common observation, a weapon 

designed or intended to propel a missile of any kind," was in 

error. 

2

 Fountain was also tried on one count of possession of 

cocaine. However, the trial court acquitted him of this charge. 

3 Cook v. Commonwealth, 219 Va. 769, 770, 250 S.E.2d 361, 362 

(1979). 

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Fountain presented his license to McKay. After running a "wanted 

check" on his license, McKay learned that there was an outstanding 

capias for Fountain. McKay then placed Fountain under arrest and 

put him in his patrol car. 

Upon searching Fountain's car, McKay found marijuana, rolling 

papers, razor blades and Fountain's wallet in the console of the 

car. McKay also found a "small corncob pipe" in front of the 

driver's seat, "where Fountain's feet would have been." Finally, 

he found a pellet gun "stuffed" between the driver's seat and the 

console. McKay could not see the gun when Fountain was in the car 

"because his leg was next to it." However, after Fountain and the 

passenger had gotten out of the car, when McKay "stuck [his] head 

in . . . [he] could see the [pellet gun] . . . ." He stated, 

"very little . . . just the very back of the grip" of the gun 

protruded above the level of the seat. Fountain claimed that the 

gun belonged to his wife and that he had forgotten it was in the 

car. Fountain had been previously convicted of malicious 

wounding, a felony. 

At the close of the Commonwealth's evidence, Fountain raised a 

motion to strike arguing that the Commonwealth had failed to 

establish concealment, as well as Fountain's knowledge of the 

presence of the gun at the time he was approached by McKay. The 

trial court denied the motion. Fountain renewed his motion at the 

close of the evidence. It was again denied by the trial court. 

On appeal, Fountain contends only that the trial court erred in 

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finding the evidence sufficient to support the conviction because 

the Commonwealth failed to establish that Fountain concealed the 

gun, or that he intended to conceal the gun. 

Code § 18.2-308.2 provides as follows, in relevant part: 

A. It shall be unlawful for (i) any person 

who has been convicted of a felony . . . to 

knowingly and intentionally carry about his 

person, hidden from common observation, any 

weapon described in subsection A of 

§ 18.2-308. 

Pursuant to Code § 18.2-308(A), as it read at the time of the 

offense, it is a crime to conceal from common observation, "any 

pistol, revolver, or other weapon designed or intended to propel 

a missile of any kind . . . or [] any weapon of like kind as 

those enumerated in this subsection . . . ."4 

 Referring to Code § 18.2-308, the Supreme Court of Virginia 

has stated "'[t]he purpose of the statute [is] to interdict the 

practice of carrying a deadly weapon about the person, concealed, 

and yet so accessible as to afford prompt and immediate use.'"5 

Code § 18.2-308.2(A) defines a concealed weapon as one "hidden 

from common observation." "Such a weapon is 'hidden from common 

observation when it is observable[,] but is of such deceptive 

 4

 In 2001, the General Assembly amended the section by 

inserting the phrase "by action of an explosion of any 

combustible material" at the end of clause (i) in subsection A. 

5 Schaaf v. Commonwealth, 220 Va. 429, 430, 258 S.E.2d 574, 

574-75 (1979) (quoting Sutherland's Case, 109 Va. 834, 65 S.E. 

15 (1909)). 

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appearance as to disguise the weapon's true nature.'"6 Therefore, 

where a weapon is "hidden from all except those with an unusual or 

exceptional opportunity to view it," it is hidden from public view 

and "concealment of it in this fashion [is] unlawful."7 Here, the 

evidence, when viewed in the light most favorable to the 

Commonwealth, demonstrates that initially McKay was unable to see 

the gun "because [Fountain's] leg was next to it." Further, once 

Fountain got out of the car and McKay "stuck [his] head in the 

car," he could see "very little" of the pellet gun – namely, "just 

the very back of the grip" of the gun, protruding above the seat. 

From this evidence, the fact finder could infer beyond a 

reasonable doubt that the pellet gun was "hidden from all except 

those with an unusual or exceptional opportunity to view it" and 

therefore, that it was concealed from public view.8 We do not 

address Fountain's argument concerning whether the Commonwealth 

established he intended to conceal the gun, or whether he made 

some conscious effort to conceal it, as our review of the record 

reveals that Fountain raised no such argument below. Instead, 

Fountain merely argued that the gun was not factually concealed. 

 6 Main v. Commonwealth, 20 Va. App. 370, 372, 457 S.E.2d 

400, 401 (1995). 

7 Id. at 372, 373, 457 S.E.2d at 402. 

8 See id. at 371, 457 S.E.2d at 401 ("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."). 

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Thus, Rule 5A:18 bars our consideration of this issue.9 Further, 

the record reflects no reason to invoke the good cause or ends of 

justice exceptions to Rule 5A:18.10

For the foregoing reasons, we affirm the judgment of the trial 

court. 

Affirmed.

 9 See Rule 5A:18; see also Ohree v. Commonwealth, 26 Va. 

App. 299, 308, 494 S.E.2d 484, 488 (1998) ("The Court of Appeals 

will not consider an argument on appeal which was not presented 

to the trial court."). 

10 Nevertheless, the evidence clearly demonstrated that 

Fountain had knowledge the gun was in the car, as he told 

Officer McKay that "he'd forgot[ten] that it was in the car." 

Further, the gun was found between the driver's seat and the 

console of the "small, two seat, sports" car. Thus, it was 

directly next to Fountain as he operated the car. Further, 

Fountain's wallet was in the console between the seats. From 

these facts, it is reasonable to assume that the gun was at 

least visible to Fountain while he was in the car. 

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