COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunzia ta and Humphreys Argued at Rich mond, Virginia

JAMES JUNIOR FOUNTAIN MEMORANDUM OPINION * BY v. Record No. 0262-01-2 JU DGE ROBERT J. HUMPHREYS MAY 7, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ALBEMARLE COUNTY Paul M. Peatro ss, Jr., Judge Andrea S. Lantz, As sistant Public Defender (Office of the Public Defender, on brief), for appellant. Stephen R. McCullou gh, Assistan t Attorney General (Rando lph 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 prev iously convicted of a felony, in violatio n 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 inte nded to propel a missil e of any kind," after having been previo usly convicted of a felony , in violation of Code § 18.2-308.2. Fountain was correctly indicted and arraigned on this charge. However, both the conv iction and sentencing orders state that Fountain wa s convicted of being a "felon in possession of a firearm." The Comm onwealth contends in their brief on appeal that the conviction an d sentencing orders de monstrate a clerical error in this re gard; we granted the Commonwe alth leave to request that the trial court consider a motion to correct th e orders, nunc pro tunc , and the trial cour t entered the orde rs December 21, 2001, nunc pro tunc , February 15, 2001, co rrecting the clerical error. Founta in does not challenge this on appeal and argues oncontends the trial cour t 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 co nsider it in the light most favorable to the Comm onwealth and give it all reasonable inferences fairly dedu cible therefrom. We should affirm the judgment unless it appe ars from the evidence that the judgment is plainly wrong or without evidence to support it. 3

So viewed, the ev idence presented at trial established th at on the evening of September 18, 1998, Offi cer John McKay, of the Albemarle Police Department, was pa trolling the area of the Milton Boat Landing when he observed a vehicle park ed at the bottom of the landing, past a si gn indicating the area was closed. McKay found Fountain and a fe male inside the car, which he described as a "small, two seat " 1986 Nissan 300ZX. McKay informed Fountain that the area was clos ed and asked to see hi s driver's license.

brief only that the weapon was not a "fir earm" and that his conviction for "unlawfully, feloniously, knowingly and intentionally, after ha ving been conv icted of a felo ny, carrying on or about his person, hidden fr om common observ ation, a weapon designed or inte nded to propel a missil e 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). - 2 -Fountain presented his license to McKay. Af ter running a "wanted check" on his li cense, McKay lear ned that there wa s an outstanding capias for Fountain. McKay then placed Foun tain under arrest and put him in his patrol car. Upon searching Founta in's car, McKay foun d marijuana, rolling papers, razor blad es 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 Fo untain's feet would have been ." Finally, he found a pellet gun "stuffed" betwee n 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." Ho wever, after Fountain and the passenger had gott en out of the car, when McKay "stuck [his] head in . . . [he] could se e the [pellet gu n] . . . ." He stated, "very little . . . just the very back of the grip" of the gun protruded above th e level of the seat. Fo untain claimed that the gun belonged to his wife and that he had forgotten it was in the car. Fountain had been previously conv icted of malicious wounding, a felony. At the close of the Co mmonwealth's evidence , Fountain raised a motion to strike argu ing that the Commonwe alth had failed to establish conc ealment, as well as Fountain's knowledge of the presence of the gu n at the time he was approached by McKay. The trial court denied the motion. Fountain re newed his moti on at the close of the evidence. It was again denied by the trial court. On appeal, Founta in contends only that the trial court erred in

- 3 -finding the eviden ce sufficient to support the conv iction because the Commonweal th failed to esta blish that Founta in 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 purp ose of the statute [i s] to inte rdict the practice of carr ying a deadly weapon abou t the person, concealed, and yet so accessible as to af ford prompt and immediate use.'" 5 Code § 18.2-308.2(A) defines a concea led weapon as one "hidden from common observatio n." "Such a weapon is 'hidden from common observation wh en it is observab le[,] 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)).

- 4 -appearance as to disguise the weapon's tr ue nature.'" 6 Therefore, where a weapon is "hidden from all except th ose with an unusual or exceptional oppo rtunity to view it ," it is hidden from public view and "concealment of it in this fa shion [is] unlawful." 7 Here, the evidence, when viewed in the light most favorable to the Commonwealth, demonstrates that initially McKay wa s unable to see the gun "because [Fountai n's] leg was next to it." Further, once Fountain got out of th e car and McKay "stuck [his] head in the car," he could see "ver y little" of the pellet gun – namely, "just the very back of the gr ip" of the gun, protru ding above the seat. From this evidence, the fact finder co uld infer beyond a reasonable doubt that the pellet gun was "hid den from all except those with an un usual or exceptional oppo rtunity to vi ew it" and therefore, that it was co ncealed from public view. 8 We do not address Founta in's argument co ncerning whether the Commonwealth established he intended to conceal the gun, or whet her he made some conscious effort to conceal it, as our review of the record reveals that Fountain raised no such argume nt below. Instead, Fountain merely argued that the gun was not factually co ncealed.

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."). - 5 -Thus, Rule 5A:18 ba rs our consideratio n of this issue. 9 Further, the record reflects no reason to invoke the go od cause or ends of justice exce ptions to Rule 5A:18. 10 For the foregoing reasons, we affi rm 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. - 6 -