Opinion
Record No. 2074-07-2.
March 17, 2009.
Appeal from the Circuit Court of Hanover County John Richard Alderman, Judge.
Charles C. Cosby, Jr. (Boone, Beale Cosby, on brief), for appellant.
Richard B. Smith, Special Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Elder, Humphreys and Powell.
MEMORANDUM OPINION BY
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Johnathan Wesley McMillan ("McMillan") appeals his convictions for attempted capital murder, in violation of Code §§ 18.2-25 and 18.2-31, and possession of a concealed weapon by a convicted felon, in violation of Code § 18.2-308.2. He argues that the Commonwealth failed to produce sufficient evidence to convict him of either charge. We disagree that the evidence was insufficient to prove attempted capital murder and affirm that conviction. However, we hold that the scuba knife McMillan possessed is neither one of the items enumerated in Code § 18.2-308 nor is it a weapon. Therefore, we reverse his conviction for possession of a concealed weapon by a convicted felon.
I. ANALYSIS
On appeal, we consider the evidence in the light most favorable to the Commonwealth, as they prevailed below, and grant to it all reasonable inferences. Marttila v. City of Lynchburg, 33 Va. App. 592, 598-99, 535 S.E.2d 693, 696 (2000). When reviewing whether the evidence is sufficient, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002).
A. Attempted Capital Murder
McMillan argues that the evidence was insufficient to convict him of attempted capital murder because the Commonwealth failed to prove that he had the specific intent to kill Trooper Powell. He contends that the sole purpose of his actions at the time of the collision was to avoid capture and, therefore, he could not have the specific intent to kill Trooper Powell. We disagree.
An individual may be guilty of capital murder when he willfully and deliberately and with premeditation kills a law enforcement officer "when such killing is for the purpose of interfering with the performance of his official duties." Code § 18.2-31. "To prove an attempt of that offense, the Commonwealth must establish beyond a reasonable doubt that (1) the accused had the intent to commit capital murder and (2) made 'some direct, but ineffectual, act toward its commission sufficient to amount to the commencement of the consummation of the crime.'" Stevens v. Commonwealth, 38 Va. App. 528, 533-34, 567 S.E.2d 537, 539 (2002) (quoting Brown v. Commonwealth, 33 Va. App. 296, 311, 533 S.E.2d 4, 11 (2000)).
Though '"a person may be guilty of murder though there was no actual intent to kill, he cannot be guilty of an attempt to commit murder unless he has a specific intent to kill.'" Haywood v. Commonwealth, 20 Va. App. 562, 566, 458 S.E.2d 606, 608 (1995) (quoting Merritt v. Commonwealth, 164 Va. 653, 660, 180 S.E. 395, 398 (1935)). "Intent is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be proved by a person's conduct or by his statements." Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969). "[W]hether the required intent exists is generally a question for the trier of fact." Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977).
The issue of whether a fleeing suspect who rams his vehicle into a police vehicle commits attempted capital murder is a question that both our Supreme Court and this Court have addressed on several previous occasions. Four of those cases with facts similar to those presented in McMillan's case are useful in our analysis.
We first addressed this issue in Haywood. There, the defendant led several police officers on a high-speed chase. Twice during the chase, individual officers set up roadblocks by positioning their vehicles in the defendant's path. The defendant, however, refused to stop. The defendant approached each roadblock without slowing down. Only last-second evasive action by the officers allowed them to avoid a collision. The defendant was subsequently convicted of two counts of attempted capital murder. We reversed, reasoning that the Commonwealth's evidence did not exclude the defendant's reasonable hypothesis of innocence; namely, that he was merely attempting to avoid apprehension.Haywood, 20 Va. App. at 567-68, 458 S.E.2d at 609. Specifically, we noted that the Commonwealth failed to produce "evidence that [the defendant] ever swerved or aimed his truck to hit the police cars when they pulled out of his path or that he turned his truck around in an attempt to hit the police cars after passing by them." Id. at 567, 458 S.E.2d at 608-09.
We again considered this issue in Stevens. In that case, the defendant had stopped his car after a high-speed chase. An officer on a motorcycle approached and stopped ten feet beyond and to the left of the defendant's car. The road in front and to the right of the defendant remained open. The defendant looked directly at the officer, and, instead of driving toward the open road, he turned the car towards the officer and began to accelerate. The defendant swerved and missed the officer only after the officer drew his weapon and fired on the car. The defendant subsequently argued that he did not intend to kill the officer. Rather, he claimed that he was merely trying to avoid apprehension. On appeal, we held that the evidence was sufficient to prove his intent to kill because, "to get away, [the defendant] could have simply driven straight ahead or to the right, in the direction his car was pointed. Instead, he deliberately turned his car in [the officer's] direction and drove toward him." Stevens, 38 Va. App. at 537, 567 S.E.2d at 541. We also emphasized that the officer was riding a motorcycle, "with little or no protection," and that the defendant's act could reasonably "have resulted in the immediate, direct and necessary consequence of [the officer's] death." Id.
Recently, in Coles v. Commonwealth, 270 Va. 585, 621 S.E.2d 109 (2005), and Baldwin v. Commonwealth, 274 Va. 276, 645 S.E.2d 433 (2007), the Supreme Court has also addressed this issue. In Coles, a police officer observed the defendant driving a stolen vehicle. One officer parked his car across the road on which the defendant was traveling, while another officer attempted to initiate a traffic stop from behind the stolen vehicle. When the defendant approached the patrol car parked across the road, he stopped the vehicle and put his hands up "in a surrender position." As one of the officers approached the stolen car, the defendant put the car in gear, and swerved toward the officer and the patrol car. The defendant hit the police car at five to ten miles per hour, pushing it towards the officer who had to move back to avoid injury.
The Supreme Court held that evidence sufficient to prove defendant's intent to kill. The Court dismissed the defendant's argument that he was merely trying to escape, noting that "contention is belied by the clear evidence that defendant drove the Honda, not straight ahead where there was plenty of room to make a right turn, but swerved to the left and aimed the Honda directly toward the officer and the police vehicle."Coles, 270 Va. at 590-91, 621 S.E.2d at 112. The Court explained that the intent to kill and the intent to avoid apprehension are not mutually exclusive, stating, "the defendant, using the motor vehicle as a dangerous weapon . . . formed the specific intent to kill the police officer, in order to avoid apprehension." Id. at 591, 621 S.E.2d at 112 (emphasis added).
In Baldwin, a police officer initiated a traffic stop of the defendant. When the officer approached the defendant's car, the defendant was on a cell phone with his window rolled up, so the officer tapped on the driver's side front window. The defendant immediately "put both hands on the steering wheel and turned his vehicle towards [the officer], and then proceeded over two lanes of traffic and sped off."Baldwin, 274 Va. at 278, 645 S.E.2d at 434. The officer testified that he "had to push off the back of the car so [the] back wheels didn't run over [his] feet." Id. at 279, 645 S.E.2d at 434 (emphasis in original). The Supreme Court held that evidence to be insufficient to prove that the defendant intended to kill the officer, because, if the defendant had struck the officer with the vehicle, "the vehicle would at most have struck [the officer's] feet." Id. at 282, 645 S.E.2d at 435.
These cases have turned on the severity of the potential harm to the officer, see, e.g., id.; Stevens, 38 Va. App. at 537, 567 S.E.2d at 541, and whether the driver swerved toward or made any attempt to avoid hitting the officer, see, e.g., Coles, 270 Va. at 590-91, 621 S.E.2d at 112; Stevens, 38 Va. App. at 537, 567 S.E.2d at 541; Haywood, 20 Va. App. at 567, 458 S.E.2d at 608-09. Here, shortly before the collision, McMillan "slammed on his brakes, swerved to the left and to the shoulder to avoid [other] officers, and made a U-turn crossing all four lanes of traffic." Officer Jessie, one of the officers from the roadblock, explained that McMillan's truck "teeter-tottered" as it made the U-turn, but that McMillan was able to regain control. McMillan sped off, now driving north in the southbound lanes of the highway toward the vehicle driven by Trooper Powell. McMillan drove directly towards Trooper Powell for thirty seconds while accelerating and traveling four tenths of a mile. Trooper Powell was driving toward McMillan until he, Trooper Powell, abruptly braked in an unsuccessful attempt to avoid a collision. McMillan could have avoided the collision by stopping or driving onto the shoulder. McMillan, however, did not brake or make any attempt to avoid the collision. Instead, he collided head-on with Trooper Powell while still accelerating. From that evidence, the fact finder could have reasonably inferred that McMillan "formed the specific intent to kill the police officer, in order to avoid apprehension." Coles, 270 Va. at 591, 621 S.E.2d at 112.
McMillan had previously demonstrated his willingness to drive on the shoulder to avoid capture by twice doing so during the chase.
McMillan argues that this case is so similar to Haywood that we are bound to reach the same result. However, the facts of this case are significantly different from the facts of Haywood. In Haywood, the officers whose vehicles the defendant nearly hit had moved their vehicles into a blocking position ahead of where Haywood was driving. Here, McMillan turned his vehicle completely around and drove towards Trooper Powell in the oncoming traffic lane in which Trooper Powell was already driving. Moreover, in Haywood, there was no evidence that the defendant could have avoided apprehension had he avoided hitting the officers. McMillan, however, could have driven past Trooper Powell by pulling onto the shoulder of the highway, something that he had already shown a willingness to do. Instead, he chose to stay in the same lane as Trooper Powell and drive directly at him. Finally, in Haywood, because the officers moved out of the way of the defendant's vehicle, there is no way of knowing whether the defendant might have swerved at the last moment to avoid contact. Here, we have ample evidence that McMillan intended to crash his truck into Trooper Powell's vehicle, because McMillan drove directly toward Trooper Powell and accelerated until he actually hit him. Haywood is distinguishable from this case and, therefore, does not mandate that we reverse McMillan's conviction.
B. Possession of a Concealed Weapon
McMillan makes two arguments in support of his claim that the evidence was insufficient to convict him of possession of a concealed weapon by a convicted felon. First, he argues that the evidence failed to prove that his knife was a weapon within the scope of Code § 18.2-308.2. Next, he argues that his knife was not hidden from common observation. We agree that the knife McMillan possessed was not a weapon and, therefore, we do not need to address McMillan's argument that the item was not concealed.
A previously convicted felon commits a felony if he "knowingly and intentionally carr[ies] about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308." Code § 18.2-308.2. Code § 18.2-308(A) enumerates several weapons, including, "any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor" or "any weapon of like kind as those enumerated in this subsection."
In Farrakhan v. Commonwealth, 273 Va. 177, 182, 639 S.E.2d 227, 230 (2007), our Supreme Court recently provided an analytic framework for evaluating whether an item falls within the purview of this statute. The initial inquiry is whether the bladed item is one enumerated in the statute. Id. If it is, the evidence is sufficient to convict and the inquiry ends. Id. However, if the bladed item is not enumerated, the next question is: Is the bladed item a weapon? Id.; Harris v. Commonwealth, 274 Va. 409, 415, 650 S.E.2d 89, 91-92 (2007). "[I]n order to be a 'weapon' within the definition of 'weapon of like kind,' the item must be designed for fighting purposes or commonly understood to be a 'weapon.'" Farrakhan, 273 Va. at 182, 639 S.E.2d at 230. The analysis ends here if the bladed item is either not designed for fighting purposes or not commonly understood to be a weapon. Harris, 274 Va. at 415, 650 S.E.2d at 92. Only if the item is a weapon, does "the analysis continue[] to determine if the item possesses such similar characteristics to the enumerated items in Code § 18.2-308(A) such that its concealment is prohibited."Farrakhan, 273 Va. at 182, 639 S.E.2d at 230.
Applying that framework here, we must first determine whether the knife McMillan possessed is one of the items enumerated in Code § 18.2-308(A). Plainly, it is not. Relying on a footnote fromRichards v. Commonwealth, 18 Va. App. 242, 245 n. 2, 443 S.E.2d 177, 179 n. 2 (1994), that defined "[a] 'bowie knife' or weapon of like kind [as] any stabbing weapon having a single sharp edge, a dull or serrated flat edge and a point, such as a hunting knife, a fishing knife, or a survivalist's knife[,]" the dissent concludes that the bladed item McMillan possessed is a de facto bowie knife, and, thus, is within the scope of the statute. The dissent's reliance on the definition of bowie knife from Richards holding that "a bowie knife or weapon of like kind" includes a hunting, fishing, and survivalist's knife is misplaced in light of the Supreme Court's analysis in Farrakhan andHarris, which requires that the item first be a weapon before determining whether it is a "weapon of like kind." Therefore, it is improper to rely on a definition that includes "weapon[s] of like kind" in the definition of the proscribed item. A survey of definitions of a bowie knife reveals that such knife typically has a ten to fifteen inch long blade that is curved concavely to a point and is especially adapted for fighting. See Webster's Third New International Dictionary 262 (1993) ("a large hunting knife adapted esp. for knife-fighting and common in western frontier regions and having a guarded handle and a strong single-edge blade typically 10 to 15 inches long with its back straight for most of its length and then curving concavely and sometimes in a sharpened edge to the point"); The Oxford English Dictionary 457, vol. 2 (2d ed. 1989) ("A large knife, with a blade from ten to fifteen inches long and above an inch broad, curved and double-edged near the point, carried as a weapon in the wilder parts of the United States"); The American Heritage Dictionary of the English Language 219 (4th ed. 2006) ("A single-edged steel hunting knife, about fifteen inches (38 centimeters) in length, having a hilt and a crosspiece"); Merriam-Webster's Collegiate Dictionary 147 (11th ed. 2004) ("a stout single-edged hunting knife with part of the back edge curved concavely to a point and sharpened"). Indeed, our Supreme Court recently reiterated that a bowie knife is a "'large hunting knife adapted [especially] for knife-fighting' with a '10 to 15 inch[] long' blade." Thompson v. Commonwealth, ___ Va.___, ___ n. 5, ___ S.E.2d ___, ___ n. 5 (Feb. 27, 2009) (quoting Wood v. Henry County Public Schools, 255 Va. 85, 95 n. 6, 495 S.E.2d 255, 261 n. 6 (1998)). A scuba diver's knife, however, has a short, sturdy blade that is "serrated on at least one edge to facilitate cutting fibrous material like rope." Owen Lee, The Skin Diver's Bible 65 (revised ed. 1986).
Subsequent to the Supreme Court's decisions in Farrakhan but before Harris, this Court again cited the Richards definition of bowie knife in Gilliam v. Commonwealth, 49 Va. App. 508, 514 n. 5, 642 S.E.2d 774, 777 n. 5 (2007). This footnote, however, is dicta because the decision in Gilliam turned on whether the weapon was of like kind to those enumerated in the statute.
A penal statute must be strictly construed. Harris, 274 Va. at 414, 650 S.E.2d at 91 (citing Farrakhan, 273 Va. at 182, 639 S.E.2d at 230). The double-edged blade on McMillan's knife is 3.75 inches long, and the total length of the knife is 8.25 inches. The blade is straight on one side and serrated on the other. No part of the blade is concave. Thus, the bladed item McMillan possessed does not meet the dictionary definition and is not a de facto bowie knife.
Because the item McMillan possessed is not one of the enumerated items in Code § 18.2-308(A), the analysis then turns to whether the item is a weapon. For an item "to be a 'weapon' within the definition of 'weapon of like kind,' the item must be designed for fighting purposes or commonly understood to be a 'weapon.'" Id. at 415, 650 S.E.2d at 92 (quoting Farrakhan, 273 Va. at 182, 639 S.E.2d at 230). A scuba knife is a safety device and a tool. See Karen Berger, Scuba Diving: A Trailside Guide 70 (2000) ("Diving knives are not defensive weapons; they are tools. Knives are useful for disentangling yourself from sea vegetation or fishing lines. You can use them to pry something loose or to dig, making sure not to harm aquatic life. A knife can also be a useful attention-getting tool, because it makes a good strong thunk [sic] when you knock it on your tank"); Clay Coleman, The Certified Diver's Handbook: The Complete Guide to Your Own Underwater Adventures 22 (2004) ("Dive knives are tools, not weapons. Their primary use should be to cut divers free in the unlikely event that they become entangled in kelp or fishing line underwater." "Dive knives should be short, sharp, and out of the way, but accessible if needed."); Lee, supra, 65 ("A sharp, sturdy diving knife is an indispensable safety aid and tool, not a weapon. Only a fool would pit his diving knife against a shark the way so many 'Hollywood divers' are depicted doing. A knife is a safety precaution against the possibility of becoming entangled in underwater lines or kelp. It is a tool used to pick and probe."); see also State v. Giltner, 537 P.2d 14, 16 (Haw. 1975) (holding that a scuba diver's knife is not a "deadly or dangerous weapon" under the Hawaii statute at issue). Like a kitchen knife and a box cutter, a scuba diver's knife was not designed for fighting purposes nor is it commonly understood to be a weapon. Because a diver's knife is not a weapon, the three-step inquiry ends here.
Though a scuba diver's knife is potentially dangerous, Code § 18.2-308(A) does not proscribe concealment of all potentially dangerous items. This Court must strictly construe penal statutes and, as such, reverse McMillan's conviction for possession of a concealed weapon by a convicted felon.
II. CONCLUSION
For all the foregoing reasons, we hold that the evidence was sufficient to convict McMillan of attempted capital murder. Therefore, we affirm that decision of the trial court. The evidence, however, is insufficient to prove that the scuba knife at issue in this case was a weapon and we reverse his conviction for carrying a concealed weapon as a convicted felon.
Affirmed, in part, and reversed, in part.
I concur in the holding and judgment of the majority that the evidence in this case was sufficient to convict McMillan of attempted capital murder. However, I disagree with the majority's holding that McMillan's knife is not a weapon within the meaning of Code § 18.2-308.2. Therefore, I respectfully dissent from that portion of the judgment.
Code § 18.2-308.2 provides that it is a felony for a previously convicted felon "to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308." Code § 18.2-308(A) enumerates several weapons, including, "any dirk, bowie knife, switchblade knife, ballistic knife, machete, razor" or "any weapon of like kind as those enumerated in this subsection." In Farrakhan v. Commonwealth, 273 Va. 177, 182, 639 S.E.2d 227, 230 (2007), the Supreme Court explained the multi-step analysis that courts must undertake to determine whether an item falls within the scope of Code § 18.2-308(A). First, the Court explained, "If the bladed item in question meets the definition of an enumerated item within Code § 18.2-308(A), the evidence is clearly sufficient for a conviction under the statute." Id. Thus, if the item meets the definition of one of the enumerated items, it is unnecessary to analyze whether the item is a "weapon of like kind." Id. As noted, notwithstanding its characterization by the majority as a "diver's knife," the knife in question meets the definition of a bowie knife, and, therefore, it is not necessary to determine whether the knife is a weapon of like kind.
A bowie knife is "a stabbing weapon having a single sharp edge, a dull or serrated flat edge and a point, such as a hunting knife, a fishing knife or a survivalist's knife." Richards v. Commonwealth, 18 Va. App. 242, 246 n. 2, 443 S.E.2d 177, 179 n. 2 (1994). Notwithstanding its characterization by McMillan and the majority as a diver's knife, the knife in this case fits plainly within the definition of a bowie knife recited above. The knife here is eight and one half inches long and is clearly designed for either cutting or stabbing. Its blade has one sharp edge, a serrated flat edge and comes to a sharp point. As a diver's knife, it is certainly akin to a hunting, fishing or survivalist's knife. A diver's knife is no less a hunting knife merely because its owner might be hunting underwater with a spear gun rather than hunting in the forest with a rifle. The knife in this case meets every aspect of the definition of a bowie knife. Because this knife "meets the definition of an enumerated item within Code § 18.2-308(A), the evidence is clearly sufficient for a conviction under the statute." Farrakhan, 273 Va. at 182, 639 S.E.2d at 230. Moreover, because the knife is one of the enumerated items, it is unnecessary to analyze whether it is a "weapon of like kind." See Thompson v. Commonwealth, ___ Va.___, ___ n. 5, ___ S.E.2d ___, ___ n. 5 (Feb. 27, 2009).
As part of its analysis in concluding that the knife in question here is a "tool" rather than a "weapon," the majority notes that "Only a fool would pit his diving knife against a shark. . . ." While the logic of that statement is as irrefutable as the maxim that "only a fool would bring a knife to a gunfight," it is just as unhelpful to the analysis as it begs the question of whether simply calling it a "diver's" knife trumps the very obvious fact that it duplicates the design and utility of a bowie knife. The mere fact that a knife may have a non-violent or industrial purpose does not preclude it from being a weapon within the meaning of Code § 18.2-308(A). Several of the items enumerated by Code § 18.2-308(A) "are not designed for fighting purposes," but are, nonetheless, "commonly understood to be 'weapons.'" Farrakhan, 273 Va. at 183, 639 S.E.2d at 230. Despite the many legitimate uses of a bowie knife, the General Assembly saw fit to include bowie knives in Code § 18.2-308(A). The fact that a "diver's" knife is not manufactured for the purpose of attacking other scuba divers is as irrelevant to the analysis as the fact that a "hunting" knife is not manufactured for the purpose of attacking other hunters.
I note with some concern the majority's willingness to look outside the record to factual sources not presented at trial or admitted into evidence. McMillan had the opportunity to present treatises on diving equipment to the trial court, and I assume that he would have if he believed that they would have advanced his case. Had he done so, the prosecution would have been entitled to dispute their validity or rebut the evidence contained therein. Moreover, by relying on those sources, the majority is reversing a trial court, at least in part, on evidence that was not before it. As Chief Justice Marshall explained long ago, "[T]he judge sees only with judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially. . . . The looseness which would be introduced into judicial proceedings [otherwise] would prove fatal to the great principles of justice."United States v. Wilson, 32 U.S. 150, 161 (1833); see also, Vaughan v. Galax, 173 Va. 335, 342-43, 4 S.E.2d 386, 389 (1939).
Because I would hold that McMillan's knife is a weapon, I also address McMillan's contention that the knife was not concealed. That argument, however, is one that he makes for the first time on appeal. In his brief, McMillan acknowledged that he failed to present that argument to the trial court, and asks us to invoke the so-called "ends of justice" exception of Rule 5A:18 and address the merits of his claim.
Rule 5A:18 provides that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." "The ends of justice exception to Rule 5A:18 is narrow and is to be used sparingly." Copeland v. Commonwealth, 42 Va. App. 424, 442, 592 S.E.2d 391, 399 (2004). In order for the exception to apply, "[t]he record 'must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.'" Akers v. Commonwealth, 31 Va. App. 521, 528 n. 2, 525 S.E.2d 13, 16 n. 2 (2000) (quoting Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)). "In order to show that a miscarriage of justice has occurred, an appellant must demonstrate more than that the Commonwealth failed to prove an element of the offense." Redman, 25 Va. App. at 221, 487 S.E.2d at 272-73. The "appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur."Id. at 222, 487 S.E.2d at 273. "Therefore, 'in examining a case for miscarriage of justice, we do not simply review the sufficiency of the evidence under the usual standard, but instead determine whether the record contains affirmative evidence of innocence or lack of a criminal offense.'" Wheeler v. Commonwealth, 44 Va. App. 689, 692, 607 S.E.2d 133, 135 (2005) (quoting Lewis v. Commonwealth, 43 Va. App. 126, 134, 596 S.E.2d 542, 546 (2004)).
McMillan does not claim that carrying a concealed weapon is not a criminal offense. Thus, for the ends of justice exception to be applicable here, the record must contain evidence affirmatively proving that McMillan's knife was not "hidden from common observation." Code § 18.2-308.2. Trooper Powell's testimony is the only information in the record regarding the location of McMillan's knife. Trooper Powell testified that he found the knife in a sheath that was "riveted" to the inside of the driver's side door of McMillan's truck. When asked where the sheath was riveted to the door, Powell answered, "Midway, accessible to his left hand." Regardless of whether that testimony is sufficient to prove that the knife was hidden from common observation, it does not affirmatively prove that it was not. Thus, the ends of justice exception is not applicable.
For these reasons, I would affirm McMillan's conviction for carrying a concealed weapon.