Leith v. Commonwealth - 17 Va. App. 620, 440 S.E.2d 152 (1994)

Rule:

Whether a weapon is upon a person or is readily accessible are largely questions of fact that must be left to reasonable inferences drawn by the fact finder from the facts and circumstances of the case. On appeal, the court reviews the evidence in the light most favorable to the Commonwealth and grants to it all reasonable inferences fairly deducible therefrom. The judgment of the court sitting without a jury will not be set aside unless it is plainly wrong or without evidence to support it.

Facts:

During a traffic stop for an illegal turn, defendant Robert Leith advised the officer that there was a loaded pistol in the locked console between the driver and passenger seats of his vehicle. The key to the console was on the same key ring as the ignition key. The officer used the key to open the console, retrieved the gun, and arrested defendant for carrying a concealed weapon. Defendant was convicted under Code § 18.2-308. Defendant appealed, and argued that the weapon was not carried on his person and was not readily accessible to him; therefore, he was not carrying the weapon.

Issue:

Was the defendant carrying the weapon within the contemplation of Code § 18.2-308? 

Answer:

Yes.

Conclusion:

The court affirmed defendant’s conviction. The court held that the pistol was close enough to defendant to be "about his person". The court held that the fact that the console was locked did not mean that the pistol was not readily accessible. The pistol was close to defendant and could be accessed with the key which was on the ring attached to the key in the vehicle's ignition. The weapon was accessible for prompt, immediate use.