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Virginia Supreme Court Reverses Concealed Weapon Offense Because Statutory Exception Applied

The Supreme Court of Virginia reversed the judgment of the Court of Appeals (“COA”) that had affirmed Dorain Jerod Myers’ conviction for carrying a concealed weapon, second offense, in violation of Va. Code Ann. § 18.2-308(A), which makes it illegal for anyone to carry “about his person” firearms in a way that’s “hidden from common observation,” because the exception contained in Code § 18.2-308(C)(8) applied. Subsection (C)(8) provides an exception for 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.”

Pursuant to an apparently lawful search of Myers’ vehicle, police observed a blue backpack on the front passenger’s floorboard “just at arm’s reach over” from the driver’s seat. The pocket on the backpack closest to the seat was zipped shut. An officer unzipped the pocket and found a .40 caliber handgun inside. Myers claimed ownership of the gun. Officers arrested Myers upon discovering he had a prior conviction for carrying a concealed handgun without a permit.

At a bench trial on a charge of carrying a concealed weapon, second offense, Myers moved to strike the Commonwealth’s evidence because the facts showed the weapon had been secured in a container in the vehicle pursuant to the statutory exception set forth in Code § 18.2-308(C)(8). The trial court denied the motion and convicted Myers of the charged offense. The COA affirmed, and the Virginia Supreme Court granted discretionary review.

The Court observed that the statutory exception is an affirmative defense to the charged offense. Generally, an affirmative defense in a criminal case “requires the defendant to present more than a scintilla of evidence (either from his own case-in-chief or from the prosecution’s) that if believed by the factfinder, could create a reasonable doubt as to the defendant’s guilt.” John L. Costello, Virginia Criminal Law and Procedure § 60.4[3] (4th ed. 2008). The exception in Code § 18.2-308(C)(8) shields defendants from criminal liability for 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 was undisputed that Myers could lawfully possess a firearm and that he possessed the firearm while in a vehicle. Consequently, resolution of the appeal centered on whether a handgun inside a fully zipped backpack is “secured” for purposes of the subsection (C)(8).

To determine what the General Assembly meant by the word “secured,” the Court would ordinarily assess the linguistic range of the statutorily undefined word in “plain, ordinary language.” Caldwell v. Commonwealth, 840 S.E.2d 343 (Va. 2020). However, since the word “secured” could have several different meanings, its meaning in the statute was ambiguous. When a word’s meaning is ambiguous, the Court resorts to the rules of statutory construction, which include examining the legislative history of the statute. Virginia-Am. Water Co. v. Prince William Cnty. Serv. Auth., 436 S.E.2d 618 (Va. 1993).

When the General Assembly first passed the former version of subsection (C)(8), the House Bill 885 (“Bill”) presented to the Governor required the handgun to be “locked in a container or compartment” within the vehicle. Doulgerakis v. Commonwealth, 737 S.E.2d 40 (Va. Ct. App. 2013). The Governor sent the Bill back to the legislature with the recommendation to substitute “locked” with “secured.” The General Assembly agreed, made the recommended substitution, and enacted subsection (C)(8) in its present form. Journal of the House of Delegates 1658-59, Reg. Sess. (2010). Therefore, the legislature made it clear that “secured” does not mean “locked.” Doulgerakis. But “secured” requires more than a “closed” container because it must not only be a closed container but also latched or fastened. Hodges v. Commonwealth, 771 S.E.2d 693 (Va. Ct. App. 2015).

The Court explained that “the ordinary way that one fastens a backpack is to fully zip its opening so that no one can reach inside. To hold otherwise is to say that handguns transported in vehicles can be secured in unlocked plastic boxes with plastic latches (such as consoles, glove boxes, and plastic gun cases) but can never, as a matter of law, be secured in unlocked bags with zippers (such as backpacks or specially designed canvas gun cases).” (Emphasis in original.) The Court concluded that Myers was entitled to the protection of subsection (C)(8)’s exception to criminal liability for carrying a concealed weapon because the handgun was secured in a container within his personal, private vehicle.

Accordingly, the Court reversed his conviction and dismissed the indictment. See: Myers v. Commonwealth, 857 S.E.2d 805 (Va. 2021). 

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Related legal case

Myers v. Commonwealth

 

 

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