                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


TERESA B. PRESTON
                                         MEMORANDUM OPINION * BY
v.   Record No. 2059-00-1               JUDGE ROBERT J. HUMPHREYS
                                              JUNE 12, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                    Rodham T. Delk, Jr., Judge

          (Teresa B. Preston, pro se, on briefs).
          Appellant submitting on briefs.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Teresa B. Preston appeals her conviction, after a bench

trial, for taking a deer with an unlawful device in violation of

Virginia Code § 29.1-556.   Specifically, Preston alleges that the

trial court erred in 1) failing to grant her motion to dismiss on

the ground that it improperly construed § 10-26 of the Code of

Southampton County; 2) finding the device used to hunt the deer

illegal; 3) ruling that Southampton ordinance § 10-26 was

unenforceable due to lack of notice to the Game Commission; and 4)

finding Code § 29.1-528 to allow the use of muzzleloading rifles,




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
but also to enable counties to prohibit their use during certain

seasons for certain animals.

        On the morning of November 12, 1999, Preston entered a

Southampton County hardware store and checked in an eight-point

buck (male deer) that she had killed in Southampton County.

Preston shot the deer with a Remington Model, 700-ML, .50 caliber

"muzzleloader."    She used saboted ammunition with a .44 caliber

ball.    The date on which Preston killed the deer was during the

early special hunting season for deer, approximately two weeks

prior to the beginning of the general hunting season for deer.

        Later that same evening, Preston sent an e-mail to Glenn

Askins, an official with the Department of Game and Inland

Fisheries (DGIF), and reported what she had done.    Preston wrote,

"This is my first deer !!!, [sic] and if the Department of Game &

Inland Fisheries chooses to cite me for violating Southampton's

Miscellaneous offences [sic] ordinance § 10-26, I would be most

grateful."    Preston went on to write that she believed the current

Southampton ordinance, § 10-26, barring the use of a rifle of a

caliber larger than twenty-two hundredths of an inch (.22) for

hunting any animal in the county, with the exception of small game

animals outside of the general open season, to be invalid due to

the County's failure to provide DGIF with notice of the ordinance,




                                 - 2 -
prior to its enactment in 1991.1   As a result, Preston contended

that the previous version of § 10-26, which she alleged allowed

"hunting of game species outside the general season for deer and

turkey with firearms," was the ordinance in effect at the time she

killed the deer. 2   Preston ended her e-mail stating, "We need to


     1
         Southampton County Code § 10-26 states:

           Hunting Weapons Restricted

           (a) It shall be unlawful for any person to
           hunt in the county with a rifle of a caliber
           larger than twenty-two one hundredths of an
           inch (.22); provided, however, that this
           section shall not be construed to:

           (1) Prohibit any person from shooting
           groundhogs with a larger caliber rifle
           between March 1 and August 31.

           (2) Prohibit hunting for small game animals
           with muzzle-loading rifles except during the
           general open season for the hunting of deer
           and turkey with firearms; and provided,
           further, the caliber of ball used in such
           muzzle-loaded rifle shall not exceed
           forty-five one hundredths of an inch (.45).

           (b) Any person violating the provisions of
           this section, upon conviction, shall be
           punished by a fine of not more than five
           hundred dollars ($500.00).
     2
        The previous version, § 11-36.1, which was recodified as
§ 10-26 in 1991, read as follows:

           Hunting -- Use of large-caliber weapons
           prohibited; exceptions.

           It shall be unlawful for any person to hunt
           in the county with a rifle of a caliber
           larger than twenty-two one hundredths of an
           inch (.22); provided, however, that this
           section shall not be construed to:


                                - 3 -
get this before a judge.   Can regional help?"   In response, and

after investigating the matter, DGIF cited Preston for "tak[ing] a

deer with an unlawful device as defined in 4 VAC § 15-270-20." 3

     At trial, Preston, who was representing herself, raised a

motion to dismiss at the close of the Commonwealth's case, arguing

that "no offense was committed."   Specifically, Preston argued

that 4 VAC § 15-90-80 allows "muzzleloading firearms," as opposed




          (a) Prohibit any person from shooting
          groundhogs with a larger caliber rifle,
          except during general open season for
          hunting game animals with firearms; or

          (b) Prohibit hunting with muzzle-loading
          rifles except during the general open season
          for the hunting of deer and turkey with
          firearms; and provided further, the caliber
          of ball used in such muzzle-loaded rifle
          shall not exceed forty-five one hundredths
          of an inch (.45).

          Any person violating the provisions of this
          section, upon conviction, shall be punished
          by confinement in jail for not more than six
          months and a fine of not more than five
          hundred dollars, either or both. (4-28-80.)
     3
        Title 4 of the Virginia Administrative Code § 15-270-20,
provides the following:

          Rifles prohibited in hunting bear and deer
          in certain counties and cities: Except as
          otherwise provided in 4 VAC 15-270-30 of
          this chapter or by local ordinance, it shall
          be unlawful to use a rifle of any caliber
          for the hunting of bear and deer in the
          counties of Chesterfield, Isle of Wight, New
          Kent, Southampton and Sussex and in the
          cities of Chesapeake and Suffolk (that
          portion formerly Nansemond County).


                               - 4 -
to rifles, to be used in all cities where firearms are allowed.4

Preston now argued that ordinance § 10-26 was validly enacted and

that since it permitted the use of muzzleloading rifles for

hunting small game animals outside the general open season for

deer and turkey, under 4 VAC § 15-90-80 the use of muzzleloading

firearms must be permitted.

     In response, the Commonwealth argued the 1991 re-enactment or

recodification of the Southampton County Code abolished all prior

laws in the County.   Since, as required by Virginia Code


     4
         4 VAC § 15-90-80 provides the following, in relevant part:

            Muzzleloading gun hunting.

            A. Early special muzzleloading season. It
            shall be lawful to hunt deer with
            muzzleloading guns from the first Monday in
            November through the Saturday prior to the
            third Monday in November, both dates
            inclusive, in all cities and counties where
            hunting with a rifle or muzzleloading gun is
            permitted east of the Blue Ridge Mountains,
            except on national forest lands in Amherst,
            Bedford and Nelson counties and in the
            cities of Chesapeake, Suffolk (east of the
            Dismal Swamp Line) and Virginia Beach.

                *     *     *     *      *    *     *

            F. Muzzleloading gun defined. A
            muzzleloading gun, for the purpose of this
            section, means a single shot flintlock or
            percussion weapon, excluding muzzleloading
            pistols, .45 caliber or larger, firing a
            single projectile or sabot (with a .38
            caliber or larger projectile) of the same
            caliber loaded from the muzzle of the weapon
            and propelled by at least 50 grains of black
            powder (or black powder equivalent).


                                - 5 -
§ 29.1-528, the amendment to the language of § 10-26, formerly

§ 11-36.1, was not sent to DGIF as required by Code § 29.1-528,

and apparently not published by DGIF, the ordinance was

unenforceable. 5   The Commonwealth argued that, therefore, there

was no language in the Southampton County Code, either permitting

or barring the use of muzzleloading weapons, as would be required

by 4 VAC § 15-90-80.



     5
         Virginia Code § 29.1-528 provides that:

            Counties or cities may prohibit hunting with
            certain firearms. --

            A. The governing body of any county or city
            may, by ordinance, prohibit hunting in such
            county or city with a shotgun loaded with
            slugs, or with a rifle of a caliber larger
            than .22 rimfire. However, such ordinance
            may permit the hunting of groundhogs with a
            rifle of a caliber larger than .22 rimfire
            between March 1 and August 31. Such
            ordinance may also permit the use of
            muzzle-loading rifles during the prescribed
            open seasons for the hunting of game
            species. Any such ordinance may also
            specify permissible type of ammunition to be
            used for such hunting.

            B. No such ordinance shall be enforceable
            unless the governing body notifies the
            Director by registered mail prior to May 1
            of the year in which the ordinance is to
            take effect.

            C. In adopting an ordinance pursuant to the
            provisions of this section the governing
            body of any county or city may provide that
            any person who violates the provisions of
            the ordinance shall be guilty of a Class 3
            misdemeanor.


                                - 6 -
     The trial court overruled Preston's motion finding "this is a

.50 caliber rifle.   The county's code does not permit the use of

a rifle of .50 caliber under any reading of it . . . ."   The

trial court ultimately convicted Preston of the charge, finding:

          The law in this case is clear. However you
          wish to interpret 10-26, as enforceable or
          unenforceable, in any event there is a
          prohibition against the taking of deer in
          Southampton County by a muzzleloading rifle
          such as was used in this case regardless of
          the caliber, and that prohibition existed on
          November 12, 1999, when the deer was taken
          in this case.

     On appeal, Preston contends that the trial court erred in

overruling her motion to dismiss because it misread § 10-26,

determining that the .45 caliber restriction referred to rifle

caliber, instead of ball.   Preston also argues that the trial

court erred in finding the gun she used to be a "muzzleloading

rifle," and in finding that the provisions of § 10-26 were void

due to Southampton County's failure to properly notify DGIF of

the changes in 1991. 6

     "We are bound by the trial court's findings of historical

fact unless those findings are plainly wrong or without evidence

to support them.   We review de novo questions of law and the



     6
       Preston also argues that the trial court erred in finding
that Virginia Code § 29.1-528 enables counties such as
Southampton to permit the use of muzzleloading rifles, but also
allows them to prohibit the use of the muzzleloading rifle
during certain seasons and for certain animals. However, we do
not address this argument as Preston failed to raise this
question in her petition for appeal. See Rule 5A:12(c).

                               - 7 -
trial court's application of defined legal standards to the

particular facts of a case."     Timbers v. Commonwealth, 28 Va.

App. 187, 193, 503 S.E.2d 233, 235-36 (1998) (citations

omitted).

     The trial court correctly found that 4 VAC

§ 15-90-80 permits the hunting of deer with muzzleloading guns

during early special deer season.    However, this only applies to

those cities and counties where hunting with a rifle or

muzzleloading gun is permitted.    We do not read § 10-26 of the

Southampton County Code to permit deer hunting with

muzzleloading rifles.

     Although muzzleloading gun is defined by 4 VAC

§ 15-90-80(B), neither the regulations nor the Virginia Code

define the term muzzleloading rifle.     In light of this, we turn

to the ordinary dictionary definition of the term to determine

its meaning.   Contrary to Preston's argument, we are not bound

by the definition of "rifle," as it appears in the Code of

Federal Regulations § 179.1 et seq., interpreting the provisions

of the National Firearms Act.    "Ordinarily, when a particular

word in a statute is not defined therein, a court must give it

its ordinary meaning.   In interpreting a statute, the Code of

Virginia constitutes a single body of law, and other sections

can be looked to where the same phraseology is employed."     Moyer

v. Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000)

(en banc) (citations omitted).    However, we are not bound by

                                 - 8 -
similar phraseology utilized in federal sources not applicable

to the statute at issue.

     Webster's Third New International Dictionary 1954 (1981),

defines the ordinary meaning of "rifle" as "a firearm having a

rifled bore and intended to be fired from the shoulder."

Sergeant Lannie Chitwood of DGIF testified that the weapon in

question was a "muzzle loading rifle."   This testimony clearly

supported the trial court's determination that Preston's gun met

the definition of a "rifle," as that term is used in § 10-26.

     Preston is incorrect in arguing that the trial court made

the determination that § 10-26 was invalid due to Southampton

County's failure to notify DGIF of the amendments.   In fact, on

the motion to strike, the trial court accepted as true Preston's

argument that § 10-26 was valid.   In addition, on final

judgment, the trial court made alternative findings ruling that

if § 10-26 was a valid ordinance, hunting with muzzleloading

rifles is not permitted in Southampton County, with the

exception of hunting small game animals outside of the general

open season for deer.   In the alternative, if § 10-26 was not

valid, the trial court ruled that hunting with muzzleloading

rifles is still not permitted under 4 VAC § 15-80-90 as, due to

the recodification of the Southampton County Code, there would

be no ordinance in Southampton either permitting or barring the

use of this particular firearm.



                               - 9 -
     Finally, Preston correctly argues that in making its ruling

on her motion to strike, the trial court misread § 10-26 as it

pertained to the appropriate caliber of firearm versus ball.

However, as set forth above, we find that the trial court

reached the correct result in both the ruling on the motion to

strike, as well as final judgment.     See Harris v. Commonwealth,

33 Va. App. 325, 332, 533 S.E.2d 18, 21 (2000) (as long as the

correct reason, along with a factual basis to support it, is

raised in the trial court, an appellate court may affirm the

judgment of a trial court when it has reached the right result

for the wrong reason).   Therefore, we affirm the judgment of the

trial court.

                                                          Affirmed.




                              - 10 -
