Lynwood Lee Main v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Baker, Barrow,* Benton,
Koontz, Willis, Elder, Bray and Fitzpatrick
Argued at Richmond, Virginia
LYNWOOD LEE MAIN
v. 	Record No. 0373-93-2 	OPINION BY
JUDGE BERNARD G. BARROW
COMMONWEALTH OF VIRGINIA 	MAY 16, 1995
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Lauren A. Caudill (Morchower, Luxton & Whaley, on
brief), for appellant.
G. Russell Stone, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
We granted a rehearing en banc in this criminal appeal
because of a dissent in the panel decision.1 The appeal
challenges the sufficiency of the evidence to convict the
defendant of carrying a concealed weapon. 	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.
Carrying a pistol, "hidden from common observation," without
*Judge Bernard G. Barrow participated in the hearing and
decision of this case, and prepared the opinion prior to his
death.
1Main v. Commonwealth, 19 Va. App. 272, 450 S.E.2d 772
(1994).

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a permit to do so, is unlawful. 	Code § 18.2-308. 	Such a weapon
is "hidden from common observation when it is observable but is
of such deceptive appearance as to disguise the weapon's true
nature." 	Id.
In this case, a police officer, who knew the defendant and
knew that he "sometimes carrie[d] a weapon," approached the
defendant in his vehicle. 	The police officer was driving on the
right side of the road. 	The defendant was walking away from him
on the left side of the road. 	Therefore, the officer could see
the defendant's right side and rear. 	The officer did not see a
weapon on the defendant; however, he did see a blue duffle bag
that hung from a strap across the defendant's shoulder. 	The
duffle bag "hung down about waist level and hip level on [the
defendant's] right side."
The officer stopped, got out of his vehicle, and approached
the defendant from the defendant's rear. 	He still did not see a
weapon on the defendant, but saw the duffle bag on his right hip.
He called to the defendant, who turned to face the officer.
When the officer reached the defendant, the officer asked the
defendant if he had a gun on him. 	The defendant moved his right
hand toward his rear pocket, and the officer grabbed his hand,
whirled him around, and saw the handle of a firearm protruding
from the defendant's right, rear pocket.
The officer later testified that he did not see the gun when

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he first saw the defendant because "of the bag over his right
side." 	Similarly, the trial court could have reasonably inferred
that the gun was not visible to the officer because it was
covered with the duffle bag.2
If the gun was in the defendant's right rear pocket and its
handle, the only part extending outside of his pocket, was
covered by the duffle bag, the weapon was hidden from common
observation. 	It was hidden from all except those with an unusual
or exceptional opportunity to view it. 	The defendant had no
permit to carry a weapon so hidden from public view. 	Therefore,
his concealment of it in this fashion was unlawful.
The judgment of conviction is affirmed.
Affirmed.
2On appeal, we must not only view the evidence in the light
most favorable to the prosecution, but also grant to it "all
reasonable inferences fairly deducible" from the evidence.
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497
(1990) (en banc)

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Koontz, J., with whom Benton, and Elder, JJ., join, dissenting.
I respectfully dissent. 	The essential facts are not in
dispute. 	Although Officer Dickerson initially was unable to see
the weapon in Main's pocket "because of the bag over his right
side," the officer instantly saw and recognized the weapon as
soon as he turned Main so that the right side of Main's body was
facing him. 	These facts do not support a conclusion that the
weapon was "hidden from common observation" as that phrase is
used in Code § 18.2-308.
Accordingly, and for the reasons more fully stated in the
majority opinion in Main v. Commonwealth, 19 Va. App. 272, 450
S.E.2d 772 (1994), I would reverse Main's conviction.