                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Decker, Judge Alston and Senior Judge Frank
            Argued at Norfolk, Virginia
PUBLISHED




            JOSHUA SAQUAN MAURICE ELEY
                                                                                OPINION BY
            v.     Record No. 0625-18-1                             CHIEF JUDGE MARLA GRAFF DECKER
                                                                               APRIL 16, 2019
            COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                           Gary A. Mills, Judge

                           Catherine A. Tatum, Assistant Public Defender, for appellant.

                           Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Joshua Saquan Maurice Eley appeals his misdemeanor conviction for carrying a loaded

            firearm equipped with a high-capacity magazine in public in violation of Code § 18.2-287.4. On

            appeal, he suggests that he was entitled to the statutory exemption in Code § 18.2-308(C)(8) for a

            firearm carried in “a personal, private motor vehicle” and that the circuit court erred in ruling to

            the contrary. We hold that the exemption does not apply because the record establishes that the

            appellant knew that the truck in which he secured the firearm was stolen and, thus, it was not “a

            personal, private motor vehicle” within the meaning of the statutory exemption. Consequently,

            we affirm the challenged conviction.

                                                    I. BACKGROUND

                   On the evening of October 10, 2017, two detectives with the City of Newport News

            Police Department were patrolling within the city when they saw the appellant and another man

            sitting in a parking lot open to the public in a pickup truck that had been reported stolen. As the

            detectives approached, the appellant “quickly” got out of the driver’s side of the vehicle and
“tr[ied] to go away from it.” They detained and questioned him. The appellant said that he “had

gotten the vehicle from someone . . . that he . . . did not know very well.” He “admitted having a

feeling that . . . something [was] wrong with the vehicle,” but he “never admitted . . . knowing

that the vehicle was stolen.”

       One of the detectives asked the appellant whether any firearms were in the truck. The

appellant said yes and directed him to the center console, which was “secured with a latch.”

Upon opening the console, the detective found and seized a “center fire” .357-caliber,

semiautomatic handgun. The weapon, which was loaded, “had an extended magazine with a

31-cartridge capacity.”

       The appellant was charged with grand larceny of the pickup truck in violation of Code

§ 18.2-95 and misdemeanor possession of a firearm with a magazine capacity of twenty or more

rounds in violation of Code § 18.2-287.4. By agreement with the Commonwealth, the appellant

entered a guilty plea to the lesser charge of receiving stolen property, based on his possession of

the truck, in violation of Code § 18.2-108. He entered a plea of not guilty to the misdemeanor

firearm charge.

       Following presentation of the Commonwealth’s evidence related to the firearm offense,

the appellant made a motion to strike. He argued that he was entitled to possess the loaded

firearm pursuant to a statutory exemption because the gun was secured within the stolen truck in

a specified fashion. The prosecutor argued that the plain language of the statutory exemption

showed that the General Assembly did not intend for the exemption to cover firearms secured in

stolen vehicles. The trial court accepted the Commonwealth’s reading of the statute and denied

the motion to strike. The court reasoned that this interpretation “comports with our sense of

privacy” because no “right to privacy [exists] in a personal, private stolen motor vehicle.”




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(Emphasis added). The appellant was found guilty and sentenced to twelve months of

incarceration for the firearm offense, with all twelve months suspended, and a $250 fine.

                                           II. ANALYSIS

       Where the “appellant argues that the trial court, under the facts adduced at trial,

misapplied a statutory exception to the prohibition on carrying a concealed weapon[,] . . . the

argument presents a mixed question of law and fact, which we review de novo on appeal.”

Hodges v. Commonwealth, 64 Va. App. 687, 693 (2015). The facts in this case are not in

dispute. Consequently, the issue is one of pure statutory interpretation, “a question of law . . .

review[ed] de novo.” Doulgerakis v. Commonwealth, 61 Va. App. 417, 419 (2013) (quoting

Wright v. Commonwealth, 278 Va. 754, 759 (2009)).

       Code § 18.2-287.4(a) provides in relevant part that it is unlawful “to carry a loaded . . .

semi-automatic center-fire rifle or pistol that expels . . . projectiles by action of an explosion of a

combustible material and is equipped . . . with a magazine that will hold more than 20 rounds of

ammunition . . . on or about his person” in any place “open to the public” in various jurisdictions

within the Commonwealth, including the City of Newport News. The statute incorporates

exemptions set out in two other provisions, Code §§ 18.2-308 and -308.016. Code § 18.2-287.4.

As pertinent here, Code § 18.2-308(C)(8) provides an exemption for “[a]ny person who may

lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle

or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.”

See generally Doulgerakis, 61 Va. App. at 420 (recognizing enactment of the exemption in 2010

under a different subsection of the statute). “[T]he Commonwealth bears the burden of

establishing that the exemption . . . does not apply.” Hodges, 64 Va. App. at 694, 699.

       It is undisputed here that possession of the type of loaded firearm that the appellant

carried in the center console of the pickup truck was proscribed by Code § 18.2-287.4(a). The

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challenge concerns whether the appellant is entitled to invoke the exemption contained in Code

§ 18.2-308(C)(8). The Commonwealth concedes the sufficiency of the evidence to prove two of

the three elements required for the exemption—that the appellant was “lawfully [permitted to]

possess a firearm” and the firearm was “secured in a container or compartment” in a vehicle.

See Code § 18.2-308(C)(8). See generally Logan v. Commonwealth, 47 Va. App. 168, 172

(2005) (en banc) (“On purely factual questions . . . , we can and do rely on the adversarial

process to sort out the contested and the uncontested aspects of the case before we begin our

responsibility of applying de novo the correct legal principles.”). The only part of entitlement to

the exemption that is in dispute concerns whether the appellant, who was in the driver’s seat of a

stolen pickup truck and pleaded guilty to possessing the truck with knowledge that it was stolen,

possessed the secured handgun “while in a personal, private motor vehicle” in the context of the

statute. We conduct our analysis taking into account well-established principles of statutory

construction.

       “The Virginia Supreme Court has long held that ‘when analyzing a statute, we must

assume that “the legislature chose, with care, the words it used . . . and we are bound by those

words as we [examine] the statute.”’” Doulgerakis, 61 Va. App. at 420 (first alteration in

original) (quoting City of Va. Beach v. ESG Enters., 243 Va. 149, 153 (1992)). “[C]ourts ‘are

required to ascertain and give effect to the intention of the legislature, which is usually

self-evident from the statutory language.’” Armstead v. Commonwealth, 55 Va. App. 354, 360

(2009) (quoting Johnson v. Commonwealth, 53 Va. App. 608, 612 (2009)).

       Consequently, we “apply[] the plain meaning of the words unless they are ambiguous or

[doing so] would lead to an absurd result.” Wright, 278 Va. at 759. A statute is ambiguous if

“the text can be understood in more than one way or refers to two or more things simultaneously

[or] [if] the language is difficult to comprehend, is of doubtful import, or lacks clearness or

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definiteness.” Blake v. Commonwealth, 288 Va. 375, 381 (2014) (first alteration in original)

(quoting Boynton v. Kilgore, 271 Va. 220, 227 n.8 (2006)). Only if a statute is found to be

ambiguous may the Court consider other factors such as the purpose, reason, and spirit of the

law, including any legislative history. See, e.g., Thomas v. Commonwealth, 256 Va. 38, 41

(1998); Simpson v. Simpson, 162 Va. 621, 635 (1934); Auer v. Commonwealth, 46 Va. App.

637, 647-48 (2005).

       In considering the meaning of particular language in context, “[w]ords in a statute should

be interpreted, if possible, to avoid rendering [other] words superfluous.” Cook v.

Commonwealth, 268 Va. 111, 114 (2004); see Epps v. Commonwealth, 47 Va. App. 687, 714

(2006) (en banc) (requiring a court to “giv[e] to every word and every part of the statute, if

possible, its due effect and meaning” (quoting Posey v. Commonwealth, 123 Va. 551, 553

(1918))), aff’d, 273 Va. 410 (2007). If the meaning of a word is clear “in context,” it is not

ambiguous merely because it “has a variety of different definitions.” Blake, 288 Va. at 382.

       Finally, penal statutes are to be construed “strictly against the Commonwealth,” giving

defendants “the benefit of any reasonable doubt about the[ir] construction.” Foley v.

Commonwealth, 63 Va. App. 186, 192, 198 (2014) (quoting Harris v. Commonwealth, 274 Va.

409, 415 (2007)). “[N]evertheless[,] a defendant is not entitled to . . . an ‘unreasonably

restrictive interpretation of [the law].’” Grimes v. Commonwealth, 62 Va. App. 470, 480 (2013)

(quoting Holloman v. Commonwealth, 221 Va. 196, 198 (1980)), aff’d, 288 Va. 314 (2014).

       With regard to the statutory exemption at issue, neither the phrase “a personal, private

motor vehicle” nor the individual words “personal” or “private” is defined in any of the relevant

code sections. Where a “statute’s terms are undefined” by the legislature, we give those terms

“their ‘ordinary meaning,’ in light of ‘the context in which [they are] used.’” Va. Marine Res.

Comm’n v. Chincoteague Inn, 287 Va. 371, 384 (2014) (alteration in original) (quoting Lawlor

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v. Commonwealth, 285 Va. 187, 237 (2013)). In ascertaining such meaning, dictionary

definitions and pertinent analysis in prior case law may be consulted. See, e.g., Jones v.

Commonwealth, 296 Va. 412, 415 (2018) (relying on the statutory language and a standard

dictionary definition); Joseph v. Commonwealth, 64 Va. App. 332, 338-39 (2015) (relying upon

multiple legal and non-legal dictionary definitions and citing Bateman v. Commonwealth, 205

Va. 595, 599-600 (1964), in which the Court “rel[ied] exclusively” on a dictionary definition);

Auer, 46 Va. App. at 645-47 (relying in part on definitions in prior case decisions).

       In determining the meaning of the phrase “a personal, private motor vehicle,” we look

first to the definition of “private,” the closest modifier to the noun “vehicle.” “Private” is

defined in pertinent part as follows:

               1a: intended for or restricted to the use of a particular person or
               group or class of persons: not freely available to the public <a
               [private] park> <a [private] party>

               1b: belonging to or concerning an individual person, company, or
               interest <our [private] goods> <[private] property> <a [private]
               house> <[private] means>

Private, Webster’s Third New International Dictionary (2002); see City of Morgantown v. W.

Va. Bd. of Regents, 354 S.E.2d 616, 618-19 (W. Va. 1987).

       The appellant agrees with the first of these definitions, quoting Merriam-Webster’s

College Dictionary (11th ed. 2005), to assert that “private” means “intended for or restricted to

the use of a particular person, group, or class.” However, he further argues that “personal” is

“[s]imilarly” defined by that dictionary as “‘of, relating to, or affecting a particular person.’”

(Emphasis added). He contends that both words mean merely that the statutory exemption

applies “to vehicles driven by individuals for their own travel purposes, as opposed to forms of

public transportation.” Accordingly, the appellant asserts that the statutory exemption does not

apply to “forms of public transportation . . . like city buses” but includes any “car, pickup truck,

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van, or other type of motor vehicle” being driven by an individual “for [his] own purposes.” The

critical piece of his argument is his claim that the exemption applies without regard to whether

the individual operating the vehicle owns it or is in lawful possession of it.

       The appellant’s analysis, however, by virtually equating the meaning of “personal” with

“private,” does not take into consideration the principle that “[w]ords in a statute should be

interpreted, if possible, to avoid rendering [other] words superfluous.” See Cook, 268 Va. at

114. “[T]he legislature chooses statutory language with care, and ‘[w]hen the General Assembly

uses two different terms, [we must] presume[] the terms . . . mean two different things.’”

Spratley v. Commonwealth, 69 Va. App. 314, 319-20 (2018) (quoting Brown v. Commonwealth,

284 Va. 538, 545 (2012)). In order to give this important principle full effect, the word

“personal” in the phrase “a personal, private motor vehicle” must mean something different from

the word “private.” These are common words that should be read in light of their common

meanings.

       A dictionary definition of the word “personal” that goes beyond the mere equivalent of

“private” means “exclusively for a given individual,” as in “a [personal] letter.” Webster’s Third

New International Dictionary, supra. Additionally, Virginia law defines “personal property” in

part as that which is “subject to ownership.” See Henry v. Commonwealth, 63 Va. App. 30, 43

(2014) (quoting Property, Black’s Law Dictionary (9th ed. 2009) (“personal property”

subheading)). These definitions support the determination that the legislature did not intend to

permit one to lawfully secure a dangerous firearm in a vehicle subject to personal ownership

without consideration of who the owner or authorized user of that vehicle is. Consequently, we

conclude that the General Assembly, by using the adjective “personal,” meant at the very least to

require that the vehicle in which one secures a firearm, in addition to being a “private” or

non-public one, must also be one that the person claiming the exemption lawfully possesses or

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occupies.1 See Braddock v. State, 194 S.E.2d 317, 320 (Ga. Ct. App. 1972) (holding that where

a truck’s owner and his employee were riding together in the vehicle, the employee “could not

reasonably think of [the truck’s glove compartment] as a personal, private place” in which he

had a reasonable expectation of privacy (emphasis added)); Villanova v. Innovative

Investigations, Inc., 21 A.3d 650, 652 (N.J. Super. Ct. App. Div. 2011) (noting the trial judge’s

observation that “it is standard practice for law enforcement officers, while engaged in police

activities, to avoid use of their personal private vehicles or to display any other personal

identifiers” (emphasis added)); cf. Byrd v. United States, 138 S. Ct. 1518, 1529 (2018) (holding

that “[a] car thief would not have a reasonable expectation of privacy in a stolen car” regardless

of “the degree of possession and control”).

       We need not decide whether one who is merely an authorized user of a vehicle qualifies

for the exemption. Cf. Morris v. City of Va. Beach, 58 Va. App. 173, 180 (2011) (applying “best

and narrowest ground” principles to hold that where one legal theory legitimized a warrantless

search, the Court would not consider whether a second legal theory might also do so (quoting

Armstead v. Commonwealth, 56 Va. App. 569, 576 (2010))). Here, the appellant was not an

authorized user under the facts of this case. To the contrary, by entering a plea of guilty to

receiving stolen property, the appellant admitted that he knew the pickup truck was stolen. See


       1
          The Virginia case decisions cited by the appellant, which employ the adjectives
“personal” and “private” jointly to modify a noun referencing a vehicle, use the terms in wholly
different contexts. See Carlton v. Boudar, 118 Va. 521, 525 (1916) (in analyzing whether a taxi
company was a common carrier for purposes of tort liability, noting that “[a]n automobile may
be used as a common carrier, a private carrier, or a personal private conveyance” without
discussing this third term (quoting Xenophon P. Huddy, The Law of Automobiles 38 (2d ed.
1909))); Thorne v. Va. Emp’t Comm’n, 5 Va. Cir. 441, 443 (1972) (in considering whether a taxi
driver was an employee or independent contractor, noting that “the only fringe benefit available
to [the] driver [of a taxi for Thorne’s company] is the use of [the vehicle] for personal private
transportation on occasion,” leaving open the inference that the term implies at least authorized
use); see also McGinnis v. McGinnis, 69 Va. App. 572, 580 (2018) (noting that circuit court
decisions are not binding on the Court of Appeals). Consequently, these decisions are not
instructive.
                                                -8-
Code § 18.2-108(A). Accordingly, under the plain meaning of “personal” as used in the

statutory exemption, the stolen vehicle was certainly not one intended “exclusively” for the

appellant or one subject to his authorized use.

                                       III. CONCLUSION

       We hold that the exemption in Code § 18.2-308(C)(8) did not apply because the appellant

knew that the truck in which he secured the firearm was stolen and, thus, it was not “a personal,

private motor vehicle” within the meaning of the exemption. Consequently, we affirm the

appellant’s conviction for violating Code § 18.2-287.4.

                                                                                        Affirmed.




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