Virginia carpet bagging marxist governor McAuliffe takes away self
protection rights and which will permit Obama's sons and daughters and
their fellow moslems to attack you, steal from you, and rape without
the ability to defend yourself.
Terry McAuliffe (D) has used his first veto on House
Bill 962, an uncontroversial bill to codify an Attorney General
opinion from 2012 (see here)
and a decision of the Virginia Court of Appeals last year, Doulgerakis
v. Com., 737 S.E.2d 40 (Va. Ct. App. 2013).
Doulgerakis v. Commonwealth, 61 Va. App. 417, 737 S.E.2d
IN THE COURT OF APPEALS OF VIRGINIA
ARGUED AT RICHMOND, VIRGINIA
ELIAS P. DOULGERAKIS
COMMONWEALTH OF VIRGINIA
Record No. 0458-12-2
Decided: February 5, 2013
Present: Judges Frank, Humphreys and Kelsey
FROM THE CIRCUIT COURT OF HENRICO COUNTY, Gary A. Hicks, Judge
Reversed and dismissed. [Page 418]
Benjamin R. Rand (Blackburn, Conte, Schilling & Click, P.C.,
on brief), for appellant.
Steven A. Witmer, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
FRANK,J. — Elias P.
Doulgerakis, appellant, was convicted, in a bench trial, of misdemeanor
possession of a concealed weapon in violation of Code § 18.2-308. On appeal, he
argues that because the handgun was being possessed within the meaning of Code
§ 18.2-308(B)(10), his possession of the gun was legal. For the reasons that
follow, we reverse his conviction.
The facts are not in dispute. On October 28, 2011, Officer L.C.
Jones of the Henrico County Police Department stopped appellant for a traffic
violation. Officer Jones asked appellant if he had anything in his glove box to
cause him concern. Appellant responded that he had a handgun in the glove
compartment. The glove box was closed and latched, but not locked. Officer Jones
removed the handgun and charged appellant with carrying a concealed weapon
without a permit. [Page 419]
Code § 18.2-308 makes it unlawful for particular individuals to
carry a firearm concealed from common observation. However, subsection (B)(10)
of the statute creates an exception by excluding the concealed weapon
prohibition from "any 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 . . .
." It is uncontested that the vehicle in question is a personal, private
At trial, the Commonwealth argued that the firearm was not
"secured" within the meaning of the statute because the gun was
readily accessible to appellant for prompt and immediate use, which is precisely
what the concealed weapon statute prohibits. The trial court agreed with the
Commonwealth's reasoning and found appellant guilty.
This appeal follows.
The sole issue on appeal is whether a firearm in an unlocked,
but latched, glove box of a private vehicle is "secured in a container or
compartment" within the meaning of Code § 18.2-308(B)(10). Appellant
argues that it is, and the Commonwealth agrees, conceding error.
On brief, the
Commonwealth explains that because of the precise wording of the statute, a
handgun need not be in a locked glove compartment to be exempt from the
concealed weapon prohibition. Generally speaking, "we are not bound by
concessions of law by the parties." Epps v. Commonwealth, 47 Va.
App. 687, 703, 626 S.E.2d 912, 919 (2006) (en banc); see also Logan v.
Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc).
Here, however, we agree with the Commonwealth's concession.
"Statutory interpretation is a question of law which we
review de novo, and we determine the legislative intent from the words
used in the statute, applying the plain meaning of the words unless they are
ambiguous or would lead to an [Page 420] absurd result." Wright v.
Commonwealth, 278 Va. 754, 759, 685 S.E.2d 655, 657 (2009). 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 interpret the statute.’" City of
Virginia Beach v. ESG Enters., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992)
(quoting Barr v. Town & Country Properties, 240 Va. 292, 295, 396
S.E.2d 672, 674 (1990)). "‘Where the legislature has used words of a
plain and definite import the courts cannot put upon them a construction which
amounts to holding the legislature did not mean what it has actually expressed.’"
Tazewell County Sch. Bd. v. Brown, 267 Va. 150, 162, 591 S.E.2d 671,
676-77 (2004) (citation omitted). However,
"[l]anguage is ambiguous if it admits of being understood in more than one
way or refers to two or more things simultaneously. An ambiguity
exists when the language is difficult to comprehend, is of doubtful import, or
lacks clearness and definiteness." Brown v. Lukhard, 229 Va. 316,
321, 330 S.E.2d 84, 87 (1985) (citations omitted). In addition,
"penal statutes are to be construed strictly against the [Commonwealth and]
cannot be extended by implication, or be made to include cases which are not
within the letter and spirit of the statute." Wade v. Commonwealth,
202 Va. 117, 122, 116 S.E.2d 99, 103 (1960).
"secured" can have several different meanings. The statute does not
define the level of security required of the compartment, whether it be locked,
fastened, or simply closed. Because "secured" is ambiguous in the
context of this particular statute, we are permitted to look to the legislative
history of Code § 18.2-308 to determine its meaning.
In 2010, the General Assembly enacted subsection (B)(10) of
the amendment exempting the prohibition of concealed handguns from personal
vehicles in certain circumstances. History of that amendment indicates that the
General Assembly specifically chose to omit the term "locked" from the
statute. Initially, the General Assembly adopted the amendment that
contained the language that a gun must be "locked in a container or
compartment" within the vehicle. However, the [Page 421] Governor's
recommended change to the amendment replaced the word "locked" with
"secured." Journal of the House of Delegates 1658-59, Reg. Sess.
(2010). In accepting the Governor's proposed change, the legislature made it
clear that in this amendment, "secured" does not mean
"locked." Had the legislature intended for "secured" and
"locked" to be synonymous, they would have disregarded the Governor's
recommendation and adopted the amendment as originally written. Thus, under the
facts presented here, we find that having the gun in a locked glove
compartment is not a prerequisite for applying the Code § 18.2-308(B)(10)
The Supreme Court of Virginia, in Schaaf v. Commonwealth,
220 Va. 429, 258 S.E.2d 574 (1979), explained the rationale of the concealed
"The purpose of the statute was to interdict [noun ~
an authoritative prohibition. "an interdict against marriage of those
of close kin" synonyms: prohibition, ban, bar, veto, proscription,
interdiction, embargo, moratorium, injunction "they breached an
interdict" added by UARF]the practice of carrying a deadly weapon about
the person, concealed, and yet so accessible as to afford prompt and
immediate use. ‘About the person’ must mean that it is so connected with
the person as to be readily accessible for use or surprise if desired."
Id. at 430, 258 S.E.2d at 574-75 (quoting Sutherland v.
Commonwealth, 109 Va. 834, 835-36, 65 S.E. 15, 15 (1909)).
The legislature, by adopting the exception relevant here,
determined that a weapon "secured in a container or compartment in the
vehicle" was not "readily accessible for use or surprise if
desired." See Uniwest Constr., Inc. v. Amtech Elevator Servs., Inc.,
280 Va. 428, 440, 699 S.E.2d 223, 229 (2010) ("The
public policy of the Commonwealth is determined by the General Assembly, for ‘it
is the responsibility of the legislature, not the judiciary, . . . to strike the
appropriate balance between competing interests . . . . Once the legislature has
acted, the role of the judiciary is the narrow one of determining what [it]
meant by the words it used in the statute.’" (alteration and
omissions in original) (quoting Dionne v. Southeast Foam Converting &
Packaging, Inc., 240 Va. 297, 304, 397 S.E.2d 110, 114 (1990))). [Page 422]
That being said, our inquiry becomes one of defining
"secure" as contemplated by the General Assembly within the meaning of
the statute. "Secured" is defined as "in safekeeping or
custody," Webster's New Universal Unabridged Dictionary 1641 (2d ed.
1983), or "well-fastened," The American Heritage Dictionary
1173 (New College Ed. 1982).
The evidence here shows that appellant's handgun was in a
closed, latched and "well-fastened" glove compartment. Pursuant to the
statute, appellant's gun was "secured in a . . . compartment" in his
vehicle, thus reducing his access to the weapon. Because appellant's handgun was
in compliance with the exception to the concealed weapon prohibition, his
possession of the gun did not violate Code § 18.2-308.
For the foregoing reasons, we reverse and dismiss appellant's
Reversed and dismissed.
Doulgerakis v. Commonwealth, 61 Va. App. 417, 417-422, 737
S.E.2d 40, ___ (2013)