COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Overton 

Argued at Norfolk, Virginia 

JOHN LEROY BOND 

 MEMORANDUM OPINION* BY 

v. Record No. 2476-95-1 JUDGE NELSON T. OVERTON 

 DECEMBER 31, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

E. Everett Bagnell, Judge 

 James L. McLemore, III, for appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 John Leroy Bond was convicted of possession of a firearm 

after having been convicted of a felony. We hold that the 

evidence is sufficient to support the conviction, and we affirm. 

 "A conviction for knowingly and intentionally possessing a 

firearm after having been convicted of a felony, see Code 

§ 18.2-308.2, requires proof beyond a reasonable doubt of either 

actual or constructive possession of the firearm." Hancock v. 

Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 139 (1995); 

see Blake v. Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 

220 (1993). To support a conviction based on constructive 

possession, the Commonwealth must prove that the defendant "was 

aware of both the presence and character of the [item] and that 

it was subject to his dominion and control." Hancock, 21 Va. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

App. at 469, 465 S.E.2d at 140 (quoting Powers v. Commonwealth, 

227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)) (alteration in 

original). 

 An exception from this strict rule exists in certain 

situations. Almost one hundred and thirty years ago, the United 

States Supreme Court in United States v. Kirby, 74 U.S. 482 

(1868), discussed the need to distinguish circumstances in which 

apparent criminal conduct would be justifiable and declared to be 

lawful because of necessity. 

 The common sense of man approves the 

judgment mentioned by Puffendorf, that the 

Bolognian law which enacted, "that whoever 

drew blood in the streets should be punished 

with the utmost severity," did not extend to 

the surgeon who opened the vein of a person 

that fell down in the street in a fit. The 

same common sense accepts the ruling, cited 

by Plowden, that the statute of 1st Edward 

II, which enacts that a prisoner who breaks 

prison shall be guilty of felony, does not 

extend to a prisoner who breaks out when the 

prison is on fire - "for he is not to be 

hanged because he would not stay to be 

burnt." And we think that a like common 

sense will sanction the ruling we make, that 

the act of Congress which punishes the 

obstruction or retarding of the passage of 

the mail, or of its carrier, does not apply 

to a case of temporary detention of the mail 

caused by the arrest of the carrier upon an 

indictment for murder. 

Id. at 487. 

 In analogous reasoning, this Court has recognized that 

"'[f]or reasons of social policy, it is better that the 

defendant, faced with a choice of evils, choose to do the lesser 

evil (violate the criminal law) in order to avoid the greater 
- 3 - 

evil threatened by the other person.'" Daung Sam v. 

Commonwealth, 13 Va. App. 312, 323, 411 S.E.2d 832, 838 (1991) 

(citation omitted). 

 Initially, Bond's actions may have placed his possession of 

the firearm into this exception. The evidence proved that Willie 

Deloatch engaged in a fight with another man. Later, when highly 

intoxicated, Deloatch approached the man and a group of people on 

a street. Deloatch was holding a gun. A woman in the group, who 

knew that Bond was Deloatch's friend, went to Bond's grocery 

store and asked Bond if he would intervene with Deloatch to stop 

the incident. Bond, who had been friends with Deloatch for 

thirty years, went to confront Deloatch. 

 When Bond arrived, Deloatch had fired the gun three times. 

Deloatch was intoxicated, had a swollen eye, and was angrily 

threatening the man with the gun. Bond spoke with Deloatch and 

attempted to calm him. Bond testified that Deloatch's mother had 

recently died and that Deloatch was upset, crying, and uncaring 

about his own conduct. Deloatch announced that he intended to 

shoot the man. After Bond reasoned with Deloatch, Deloatch gave 

him the gun. 

 Bond coaxed Deloatch into his car and drove with Deloatch to 

Gwendolyn Golden's residence. Golden was Bond's romantic friend 

and a person whom Deloatch respected. Bond explained to Golden 

what had occurred and asked to leave the gun with her until 

Deloatch was sober. She agreed. Bond placed the gun on top of a 
- 4 - 

high cabinet in Golden's kitchen and left with Deloatch. 

 Two years later, when the police were searching Golden's 

residence in connection with another matter, a police officer 

found the gun atop the cabinet. The gun had dust on it and had 

been undisturbed. The officer testified that the accumulation of 

dust indicated to him that the gun had been on the cabinet for a 

long time. Golden testified that she had forgotten about the gun 

until the police found it. 

 After the discovery of the gun, another police officer went 

to Bond's store and questioned Bond about the gun. Bond 

testified that he then remembered the gun and explained the 

incident involving Deloatch. The officer arrested Bond for 

possession of a firearm after having been convicted of a felony. 

 After his arrest, Bond gave the police a written statement in 

which he stated that he had taken the gun from Deloatch to "keep 

a person from getting hurt" and that he placed the gun atop a 

cabinet over the sink at Golden's residence. 

 The trial judge ruled that Bond's initial, actual possession 

was justifiable. That ruling was based on the following 

findings: 

 Mr. Bond, in this case I would agree with 

what your lawyer said that the Court 

certainly would not find you guilty of 

possessing a firearm under the circumstances 

that you took it. No question you took it 

under circumstances where you were trying to 

prevent someone from getting hurt and 

rightfully so. You did the right thing, no 

question. I don't think no Judge, nor no 

jury in the world would convict you of 

possessing a firearm under those 
- 5 - 

circumstances because you didn't really 

intentionally possess it at that time. The 

problem arises after that. 

 The trial judge then found Bond guilty of constructive 

possession of the gun because the gun remained in Golden's 

residence. The judge stated the following rationale for the 

conviction: 

 Now, the code does not allow a convicted 

felon to hold a firearm for someone else as 

an agent, fiduciary or any capacity. A 

convicted felon is not allowed to hold a gun 

for someone, other than some emergency 

purposes. And obviously the emergency ceased 

to exist once the cooling period was over and 

at some point even maybe you could say well, 

you should have kept it a day and let him 

sober up. Maybe so, but at some point that 

ended, that emergency situation ended. 

 There's no question in the Court's mind, 

Mr. Bond, under the law you had constructive 

possession of this weapon. You put it where 

it was found. Mr. Bond had access, no 

question, to the home. There's no question 

he came and went from that home. I agree 

it's not your home, you don't live there, but 

Mr. Bond did come and go. That's what the 

testimony is and sometimes he spent the night 

there. 

 We agree with the trial court's conclusions. Bond admitted 

at trial that at one time he was aware of both the presence and 

character of the firearm. Indeed, he personally placed it in its 

location because he knew it was a dangerous weapon. Bond argues 

on appeal that he later lost awareness of the presence of the gun 

by forgetting it. We cannot accept the proposition that one may 

lose possession or dispossess oneself of property by mere 

forgetfulness. Creating such a principle would lead to absurd 
- 6 - 

results, especially in cases of controlled substances or stolen 

property.1

 The evidence presented at trial also sufficiently proved the 

second element: dominion and control over the firearm. Though 

not in Bond's residence, the gun was in an apartment that Bond 

frequented on a regular basis and often stayed overnight. Bond 

admitted placing the firearm there without asking the consent of 

the apartment's owner, and when asked by the apartment's owner 

what he planned to do with it, he stated that he was going to 

hold it until he decided to return it to the gun's owner. Bond 

thereafter had unrestricted access to the firearm. 

 The circumstances after the emergency had passed evidence 

Bond's dominion and control over the firearm such that, when 

combined with Bond's actual knowledge of the presence and 

character of the gun, the evidence is sufficient to support a 

conviction for possession of a firearm after having been 

convicted of a felony. 

 Affirmed.

 

 1This case is distinguished from Hancock, in which the trial 

court found only that the defendant should have known about the 

presence of the firearm, a standard lower than the statutorily 

prescribed "knowingly and intentionally possess[ing]." Hancock, 

21 Va. App. at 469, 465 S.E.2d at 140; see Code § 18.2-308.2. 

Here, Bond concedes that he actually knew about the firearm at 

one time, and thereafter forgot it. 
- 7 - 

Benton, J., dissenting. 

 "A conviction for knowingly and intentionally possessing a 

firearm after having been convicted of a felony, see Code 

§ 18.2-308.2, requires proof beyond a reasonable doubt of either 

actual or constructive possession of the firearm." Hancock v. 

Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 139 (1995). 

Furthermore, almost one hundred and thirty years ago, the United 

States Supreme Court in United States v. Kirby, 74 U.S. 482 

(1868), discussed the need to distinguish circumstances in which 

apparent criminal conduct would be justifiable and declared to be 

lawful because of necessity. 

 The common sense of man approves the 

judgment mentioned by Puffendorf, that the 

Bolognian law which enacted, "that whoever 

drew blood in the streets should be punished 

with the utmost severity," did not extend to 

the surgeon who opened the vein of a person 

that fell down in the street in a fit. The 

same common sense accepts the ruling, cited 

by Plowden, that the statute of 1st Edward 

II, which enacts that a prisoner who breaks 

prison shall be guilty of felony, does not 

extend to a prisoner who breaks out when the 

prison is on fire - "for he is not to be 

hanged because he would not stay to be 

burnt." And we think that a like common 

sense will sanction the ruling we make, that 

the act of Congress which punishes the 

obstruction or retarding of the passage of 

the mail, or of its carrier, does not apply 

to a case of temporary detention of the mail 

caused by the arrest of the carrier upon an 

indictment for murder. 

Id. at 487. 

 In analogous reasoning, this Court has recognized that 

"'[f]or reasons of social policy, it is better that the 
- 8 - 

defendant, faced with a choice of evils, choose to do the lesser 

evil (violate the criminal law) in order to avoid the greater 

evil threatened by the other person.'" Daung Sam v. 

Commonwealth, 13 Va. App. 312, 323, 411 S.E.2d 832, 838 (1991) 

(citation omitted). The evidence in this appeal proved that John 

Bond's conduct was justifiable, probably saved another person's 

life, and was not criminal. 

 The evidence proved that Willie Deloatch engaged in a fight 

with another man. Later, when highly intoxicated, Deloatch 

approached the man and a group of people on a street. Deloatch 

was holding a gun. A woman in the group, who knew that Bond was 

Deloatch's friend, went to Bond's grocery store and asked Bond if 

he would intervene with Deloatch to stop the incident. Bond, who 

had been friends with Deloatch for thirty years, went to confront 

Deloatch. 

 When Bond arrived, Deloatch had fired the gun three times. 

Deloatch was intoxicated, had a swollen eye, and was angrily 

threatening the man with the gun. Bond spoke with Deloatch and 

attempted to calm him. Bond testified that Deloatch's mother had 

recently died and that Deloatch was upset, crying, and uncaring 

about his own conduct. Deloatch announced that he intended to 

shoot the man. After Bond reasoned with Deloatch, Deloatch gave 

him the gun. 

 Bond then coaxed Deloatch into his car and drove with 

Deloatch to Gwendolyn Golden's residence. Golden was Bond's 
- 9 - 

romantic friend and a person that Deloatch respected. Bond 

explained to Golden what had occurred and asked to leave the gun 

with her until Deloatch was sober. She agreed. Bond placed the 

gun on top of a high cabinet in Golden's kitchen and left with 

Deloatch. 

 Two years later, when the police were searching Golden's 

residence in connection with another matter, a police officer 

found the gun atop the cabinet. The gun had dust on it and had 

been undisturbed. The officer testified that the accumulation of 

dust indicated to him that the gun had been on the cabinet for a 

long time. Golden testified that she had forgotten about the gun 

until the police found it. 

 After the discovery of the gun, another police officer went 

to Bond's store and questioned Bond about the gun. Bond 

testified that he then remembered the gun and explained the 

incident involving Deloatch. The officer arrested Bond for 

possession of a firearm after having been convicted of a felony. 

 After his arrest, Bond gave the police a written statement in 

which he stated that he had taken the gun from Deloatch to "keep 

a person from getting hurt" and that he placed the gun atop a 

cabinet over the sink at Golden's residence. 

 The trial judge ruled that Bond's initial, actual possession 

was justifiable. That ruling was based on the following 

findings: 

 Mr. Bond, in this case I would agree with 

what your lawyer said that the Court 

certainly would not find you guilty of 
- 10 - 

possessing a firearm under the circumstances 

that you took it. No question you took it 

under circumstances where you were trying to 

prevent someone from getting hurt and 

rightfully so. You did the right thing, no 

question. I don't think . . . [any] Judge, 

. . . [or any] jury in the world would 

convict you of possessing a firearm under 

those circumstances because you didn't really 

intentionally possess it at that time. The 

problem arises after that. 

 The trial judge then found Bond guilty of constructive 

possession of the gun because the gun remained in Golden's 

residence. The judge stated the following rationale for the 

conviction: 

 Now, the code does not allow a convicted 

felon to hold a firearm for someone else as 

an agent, fiduciary or any capacity. A 

convicted felon is not allowed to hold a gun 

for someone, other than some emergency 

purposes. And obviously the emergency ceased 

to exist once the cooling period was over and 

at some point even maybe you could say well, 

you should have kept it a day and let him 

sober up. Maybe so, but at some point that 

ended, that emergency situation ended. 

 There's no question in the Court's mind, 

Mr. Bond, under the law you had constructive 

possession of this weapon. You put it where 

it was found. Mr. Bond had access, no 

question, to the home. There's no question 

he came and went from that home. I agree 

it's not your home, you don't live there, but 

Mr. Bond did come and go. That's what the 

testimony is and sometimes he spent the night 

there. 

That reasoning and the evidence in the record are insufficient to 

support the conviction. 

 In Hancock, we ruled as follows: 

 Liability under Code § 18.2-308.2 requires 

proof that the accused "knowingly and 
- 11 - 

intentionally possess[ed] . . . any firearm." 

 Thus, the Commonwealth must prove a 

defendant's actual knowledge of the firearm. 

 The trial judge misunderstood the requisite 

mental state when he ruled that "should have 

known" was sufficient. We can affirm this 

appeal only if the Commonwealth proved beyond 

a reasonable doubt that [the defendant] had 

actual knowledge of the presence of the 

firearm, i.e. "knowingly and intentionally 

possess[ed]" the firearm. 

21 Va. App. at 469, 465 S.E.2d at 140 (citations omitted). 

 The evidence in this case proved that after Bond defused 

Deloatch's anger and gained possession of the gun, he took the 

gun to Golden's residence because he believed that Deloatch 

respected Golden and, thus, would not seek to obtain it from her 

while he was intoxicated. No evidence proved Bond knowingly or 

intentionally retained possession of the gun after he delivered 

it to Golden's residence. Golden testified she had forgotten 

that the gun was atop the cabinet. Bond also testified that he 

had forgotten about the gun until the police questioned him about 

the gun atop the cabinet. In addition, the evidence proved that 

shortly after the incident Deloatch was incarcerated and likely 

was unable to obtain the gun from Golden. 

 Indeed, the trial judge clearly accepted as a fact that Bond 

had forgotten that the firearm was in Golden's residence. The 

judge stated the following at sentencing: 

 Now, I am going to state for the record, 

Mr. Bond, in this case that although the 

Court has found that you are in constructive 

possession of the firearm I think the 

evidence indicates that at least from the 

Commonwealth's own evidence that you had not 

handled this firearm, that what you said 
- 12 - 

about where you put the firearm is accurate. 

 That you put it up there, that you had not 

gone back and forgotten the firearm, that 

type of thing. I think the evidence probably 

does support that. 

 Nevertheless, the trial judge reasoned: 

 But the firearm was certainly in a place 

where you had access on a regular basis. You 

put it there, you knew where it was, and for 

that reason the Court is required under the 

law to make the finding that it made. 

In effect, the trial judge ruled that although Bond had forgotten 

that the gun was above the cabinet in Golden's residence, he 

should have known the gun was in the residence because he placed 

it there two years earlier and later visited Golden in the 

residence. That rationale cannot support the conviction. See

id.

 Furthermore, proof that Bond was present in Golden's 

residence at various times during the two year period did not 

negate the undisputed evidence that Bond had forgotten that the 

gun was atop the cabinet. Thus, the trial judge could not 

logically have found that Bond "knowingly and intentionally 

possess[ed]" the gun. Code § 18.2-308.2; see also Staples v. 

United States, 511 U.S. 600, 623 (1994) (Ginsburg, J., 

concurring) ("'Knowingly possessed' logically means 'possessed 

and knew that he possessed.'"). 

 Bond had no preconceived design to obtain or keep the gun. 

He put himself at risk of great injury or death when he disarmed 

Deloatch. Bond's conduct manifested the principle "that the law 
- 13 - 

promotes the achievement of higher values at the expense of lower 

ones and that '"sometimes the greater good for society will be 

accomplished by violating the literal language of the criminal 

law."'" State v. Crawford, 521 A.2d 1193, 1197 (Md. 1987) 

(citation omitted). Because the evidence proved that Bond forgot 

about the gun after he justifiably obtained the gun from Deloatch 

and placed it in Golden's residence, the Commonwealth failed to 

prove beyond a reasonable doubt that Bond constructively 

possessed the gun while it remained undisturbed on the cabinet.