COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Mc Clanahan and Senior Judge Willis Argued by teleconference

EUGENE BOONE, IV MEMORANDUM OPINION * BY v. Record No. 1371-08-1 JUDGE JERE M.H. WILLIS, JR. JANUARY 12, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK Carl E. Eason, Jr., Judge Jean Veness, Assistant Public Defender, for appellant. Kathleen B. Martin, Senior Assi stant Attorney Ge neral (William C. Mims, Attorney General, on brief), for appellee.

On appeal from his convictio n of possession of explosive material after having been convicted of a felony, Eugene Boon e, IV, contends the trial court e rred in finding that he knowingly and intentionally possessed explosive material. 1 Boone argues that the evidence was insufficient to prove he knew the charac ter or composition of the cartridge found in his po cket. We disagree and

affirm. Police officers responded to a disturbance call, and an officer looked inside a car. Boone approached and told the of ficer he had no right to search the car. The offi cers arrested Boone on unrelated charges. Upon a search incident to the arrest, an offi cer recovered from Boone’s pants pocket a handgun magazine clip containing six .380 caliber cart ridges. Laboratory examination of

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Boone was also convicted of assault and batt ery of a police officer and resisting arrest. In his petition for appeal to this Court, Boone challenged the assault and battery conviction. We denied the petition as to th at issue by orders entered February 13, 2009 and April 29, 2009.- 2 - one of the cartridges established that it contained smokeless gunpo wder. At trial, Boone admitted he had previously been convicted of a felony. Code § 18.2-308.2(A) forbids any person who has been convicted of a felony to knowingly and intentionally posse ss any explosive material. Code § 18.2-308.2(D) provides in part, “‘Explosive material’ means any chemical compound mixture, or de vice, the primary or common purpose of which is to function by explosi on; the term includes, but is not limited to, dynamite and other high explosives, black pow der, pellet powder, smokeless gun powder, detonators, blasting caps a nd detonating cord . . . .” 2 Relying upon Young v. Commonwealth , 275 Va. 587, 659 S.E.2d 308 (2008), Boone argues that the Commonwealth wa s required to prove that he ha d actual knowledge that the cartridge contained explosive material. In Young , a police officer found in Young’s purse an OxyContin prescription bottle, containing two bl ue tablets and six white tablets. Young was driving her boyfriend’s car, and th e prescription bottle indicated that it was issued to her boyfriend’s niece. The blue tablets were identif ied as morphine, and the white tablets were

identified as Trazadone. Id. at 589-90, 659 S.E.2d at 309. The Supreme Court held In a prosecution for possession of a controlled substance, the Commonwealth must produce evidence sufficient to support a conclusion beyond a reasonable doubt that the defendant’s possession of the drug was knowing a nd intentional. Actual or constructive possession alone is not sufficient. “The Commonwealth must also establish that the defendant intentionally and consciously possessed it with knowledge of its nature and character.”

Id. at 591, 659 S.E.2d at 310 (quoting Burton v. Commonwealth , 215 Va. 711, 713, 213 S.E.2d 757, 759 (1975)) (citations omitted). In reve rsing Young’s conviction for possession of morphine, the Supreme Court held that neither the bottle nor its co ntents indicated the character

2 In 2009, the statute was amended to include ammunition for a firearm.- 3 - of the pills, that the officer could not determin e the nature of the pills without submitting them for laboratory analysis, and that there was no reas on to infer that Young was any better informed.

Id. at 592, 659 S.E.2d at 311. Thus, “[t]he ambi guous circumstantial evidence concerning the appearance of the bottle a nd its contents is as consistent with a hypothesis of innocence as it is with that of guilt.” Id. We agree with Boone that the Commonwealth was required to prove that he possessed the cartridge, knowing its explosiv e character, but disagree that the Commonwealth failed to do so. A handgun magazine clip with six rounds of ammunition is cognizably different from unmarked tablets in a prescription bottle. As the trial court hel d, it is common knowledge that a firearm cartridge “[is] a device that operate[s] by an explosion, by an internal explosion. That’s how bullets work.” Boone did not possess a single item that might conceivably be mistaken for a fake. He possessed a loaded firearm magazi ne. It is common knowledge that firearm ammunition is loaded with gunpowder and explodes. The evidence sufficiently proved and suppor ts the trial court’s finding that Boone knowingly and intentionally possessed explosive material and was guilty of possession of explosive material after having been convicted of a felony.

Affirmed.- 4 - McClanahan, J., concurring. At the time of Boone’s arrest, he was not allowed as a convicted felon to knowingly and intentionally possess any explosive material, de fined as, among other things, “a device, the primary or common purpose of which is to f unction by explosion.” Code § 18.2-308.2(A) and (D). There is no dispute that, when arrest ed, Boone was in possession of a handgun magazine clip with six rounds of ammunition, consisting, more specifically, of si x .38 caliber Winchester cartridges. In finding Boone guilty under Code § 18.2-308.2, the trial court determined that a firearm cartridge “[is] a device that operate[s] by an explosion, by an internal explosion. That’s how bullets work.” That is, its “common purpos e . . . is to function by explosion.” Code § 18.2-308.2(D). And this does not change from cartr idge to cartridge, unlike, for example, the

character and content of the enumerable kinds of bottles of pill s that one may obtain, distinguishing the facts in this case from those in Young v. Commonwealth , 275 Va. 587, 659 S.E.2d 308 (2008), upon which Boone relies. Boone’s contention that the Commonwealth failed to prove his guilt because it did not present any evidence that he “knew the character or composition of the cartridges or that he was otherwise conversant with the comp osition of a cartridge,” is without merit. We cannot say, as a matter of law, that the trial court erred in ta king judicial notice of th e fact that the common purpose of a firearm cartridge is to function by explosion. “[ A ] ny matter may be judicially noticed if it is commonly known in the jurisdiction or easily ascertai nable from reliable sources.” Charles E. Friend, The Law of Evidence in Virginia § 19-15, at 924 (6th ed. 2006); see, e.g. , State ex rel. Oil Serv. Co. v. Stark , 122 S.E. 533, 536 (W. Va. 1924) (“ The courts take judicial notice that gasoline and other inflammable petroleum products, gunpowder and dynamite, are dangerous and explosive, as a matter of common knowledge.” (citations omitted)). Furthermore, the fact that Boone possessed the cartridges in a firearm magazine was at least circumstantial- 5 - evidence, if not direct eviden ce, that he knew that the “comm on purpose” of a cartridge was to function by explosion—in th is case, with a handgun. 3

I therefore concur in a ffirming Boone’s conviction.

3 As the majority points out, Code § 18.2-308.2 was amended in 2009 to specifically include ammunition for a firearm as one of the it ems proscribed under the statute. That does not necessarily mean that the statute cannot be read to include ammunition w ithin its scope prior to the amendment. While “a presumption normally aris es that a change in law was intended when new provisions are added to prio r legislation by an amendatory act,” a legislative amendment does from time to time simply “make [a statute] more detailed and specific,” without making any “changes of substance,” Boyd v. Commonwealth , 216 Va. 16, 20, 215 S.E.2d 915, 918 (1975), which is, I believe, what transpired with the 2009 amendment to Code § 18.2-308.2.