COURT OF APPEALS OF VIRGINIA

Present: Judges Hu mphreys, Beales and Huff Argued at Salem, Virginia

BENJAMINE LEONARD FOLEY, II OPINION BY v. Record No. 0619-13-3 J UDGE ROBERT J. HUMPHREYS MARCH 25, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF ROANOKE COUNTY James R. Swanson, Judge (Neil A. Horn, on brief), for appellant. Appellant submitting on brief. Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Benjamine Leonard Foley, II, (“Foley”) appe als his conviction for carrying a concealed weapon in violation of Code § 18.2-308(A) by the Roanoke County Circ uit Court (the “trial court”). Foley’s single assignment of error is that the “trial cour t erred when it found the easement over Foley’s property was excluded from be ing considered part of the curtilage of his dwelling,” and therefore Foley could not avai l himself of the exception provided in Code § 18.2-308(B).

I. B ACKGROUND “On appeal, we view the facts established at trial in the ‘light most favorable’ to the prevailing party below, in this case the Common wealth, and we grant to that party all fair inferences flowing from those facts.” Crawford v. Commonwealth, 55 Va. App. 457, 462 n.1, 686 S.E.2d 557, 559 n.1 (2009) (citations omitted). In this light, the evidence establishes the following.PUBLISHED- 2 - Holly Tree Road is a one-mile-long, privatel y maintained, dead-end, dirt road that is “long, narrow, and winding.” Holly Tree Road bisects Foley’s f our-acre property—that portion of the road is still Foley’s property but is subj ect to a non-exclusive easem ent. Where Holly Tree Road crosses Foley’s property, on one side is Fole y’s house, and on the other side is his “garage” and/or “junkyard” where Foley keeps his farm equipment and “a bunch of scrap stuff for working on whatever.” Foley’s residence is the second to last house, and Thomas Smallwood’s (“Smallwood”) residence is the last house before Holly Tree Ro ad dead ends. Smallwood’s property was gifted to him by deed in 1988 by Foley. In the 1988 deed, Foley and his wife also conveyed to

Smallwood “an 18-foot wide easement over their re maining property for the purposes of ingress and egress to a private road[,] which is the subj ect of a non-exclusive easem ent to the parties of the first part [Foley and his wife].” This eas ement allows Smallwood to access his house at the end of Holly Tree Road. There are fifteen othe r residences on Holly Tree Road, however those

homes are all located be fore Foley’s property. On the evening of March 21, 2012, Smallwood ca lled his brother-in-law and next-door neighbor, Foley, to ask for a favor. Smallwood told Foley that his daughter (Foley’s niece) and granddaughter were alone in Smallwood’s house. Moments earlier, his daughter’s boyfriend

threatened to harm them and was en route to Smallwood’s house. Smallwood asked Foley to block the road and not let anyone through to his house until the police arrived, who were also on their way to Smallwood’s house. When the Roanoke County police responded to the disturbance at Smallwood’s house, Foley was standing in the middle of Holly Tr ee Road and pointing a gun at the approaching- 3 - marked police vehicles. 1 Although Foley was standing in the road beyond the entrance to his driveway, “he was standing right next to [his house], ” about twenty feet away “[a]s a crow flies.” Where Foley was standing, there is a steep slope between the road to his house. After ordering Foley to drop his weapon and handcuffing him, the police officers searched Foley’s person and found a loaded .25 caliber handgun in the pocket of hi s sweatpants. Foley was charged with carrying a concealed weapon. At his bench trial, Foley argued that he was not guilty because at the time of the offense he was standing on the curtilage of his residence—an exception expressly provi ded for by statute in Code § 18.2-308(B). 2 The trial court rejected his argument, finding that “it [i]s pretty clear that the roadway that the defendant was standing on when this occurred was his prop erty but it was subject to an [sic] nonexclusive easement, which I think excludes it from being cons idered part of the curtilage pertaining to his residence and consequen tly the exception language of the statute doesn’t apply.” Accordingly, the trial court found Foley guilty of carrying a concealed weapon in violation of Code § 18.2-308(A).

II. A NALYSIS Subsection (A) of Code § 18.2-308 prohibits the carrying of concealed weapons. However, subsection (B) of Code § 18.2-308 provides that “[t]his section shall not apply to any person while in his own place of abode or the curtilage thereof .” Foley concedes that he was carrying a concealed weapon, but argues that the tr ial court erred in finding that he was not

1 Foley was charged with felony assault on a law enforcement officer, but was later acquitted by the trial court.

2 Foley’s trial counsel improperly argued th at the Commonwealth bears the burden of proving “beyond a reasonable doubt . . . that he wasn’t on his curtilage.” As discussed infra Part II.B, we hold that the exception provided in C ode § 18.2-308(B) is a stat utory defense that the accused bears the burden of production, and ther efore the inapplicabil ity of any statutory exception is not an essential element of the crim e that the Commonwealth is required to prove beyond a reasonable doubt.- 4 - within the “curtilage” of hi s place of abode within the meaning of subsection (B) and consequently not exempt from prosecution under s ubsection (A). A trial court’s “interpretation of a statute[] presents a ques tion of law that we review de novo .” LaCava v. Commonwealth, 283 Va. 465, 470, 722 S.E.2d 838, 840 (2012). Thus, in this case, we review the trial court’s interpretation of the term “curtil age” contained in Code § 18.2-308(B) de novo

. A. The Term “Curtilage,” as Contained in Code § 18.2-308(B), Is as Defined at Common Law.

In accordance with the basic tenets of statut ory construction, “[w]hen the language of a statute is plain and unambiguous, we are bound by the plain meaning of that language.” Vaughn, Inc. v. Beck, 262 Va. 673, 677, 554 S.E.2d 88, 90 (2001) . “Thus, ‘[a]n undefined term must be given its ordinary meaning, given the context in which it is used.’” Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (quoting Sa nsom v. Bd. of S upervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999)). “[W]hen the General Assembly has used words of a plain and definite import, courts cannot place on them a construction that amounts to holding that the General Assembly meant some thing other than that which it actually expressed.” Vaughn, Inc., 262 Va. at 677, 554 S.E.2d at 90. “Conse quently, ‘[t]he plain, obvious, and rational meaning of a statute is to be preferred over a ny curious, narrow, or strained construction.’” Meeks, 274 Va. at 802, 651 S.E.2d at 639 (quo ting Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998)). Both the Commonwealth and Foley agree that the Code does not define “curtilage” and there is no existing Virginia case law construing the meaning of “curtilage” as it is used in Code § 18.2-308(B), or as it is us ed elsewhere in the Code. 3 Although the Code does not expressly

3 There are three additional places where the term “curtilage” appears in the Code: Code § 18.2-308.2 allows a convicted felon to possess a stun gun “in his residence or the curtilage thereof”; Code § 64.2-307 allows a surviving spouse to “enjoy the principal family residence and curtilage without charge for rent , repairs, taxes, or insurance” ; and finally, Code § 18.2-78 limits- 5 - define “curtilage,” because the term’s plain m eaning is well established at common law, we assume the General Assembly intended to assign its established meaning. See Meeks, 274 Va. at 802, 651 S.E.2d at 639 (finding that when courts in terpret the language of a statute, “‘[a]n undefined term must be given its ordinary mean ing, given the context in which it is used’” (quoting Sansom, 257 Va. at 594-95, 514 S.E.2d at349)); see also Code § 1-200 (“The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.”). “The curtilage concept originated at co mmon law to extend to the area immediately surrounding a dwelling house the same protection unde r the law of burglary as was afforded the house itself.” United States v. Dunn, 480 U.S. 2 94, 300 (1987). The Supreme Court of Virginia explained in Bare v. Commonwealth, 122 Va . 783, 794, 94 S.E. 168, 172 (1917), that “[i]n England the curtilage seems to have included only the buildings within th e inner fence or yard, because there, in early times, for defense, the cust om was to enclose such place with a substantial wall,” however, in the United States “such walls or fences, in many cases, do not exist, so that [in the United States] the curtilage includes the cl uster of buildings constituting the habitation or dwelling place, whether enclosed with an inner fence or not.” The Bare Court defined a home’s “curtilage” as “a space n ecessary and convenient, habitually used for family purposes and the carrying on of domestic employment; the yard, gard en or field which is near to and used in connection with the dwelling.” Id.

Bare’s definition embodies the common law c onception of the mean ing of “curtilage”:

the boundaries of a home’s curt ilage are primarily defined by their relationship with the home

what is deemed a “dwelling house”—excluding cer tain structures despite being “within the curtilage thereof.” Presently, no Virginia appell ate court has construed the term “curtilage” in relation to any of these statutes.- 6 - itself rather than mere physical proximity or ow nership. See Oliver v. United States, 466 U.S. 170, 180 (1984) (“At common law, the curtilage is the area to which extend s the intimate activity associated with the ‘sanctity of a man’s home an d the privacies of life.’” (quoting Boyd v. United States, 116 U.S. 616, 630 (1886))). Thus, regardless of the contex t in which the extent of a home’s “curtilage” arises, the shared inquiry is the relevant area’s conn ection to the residence and its role in the lives of its occupants. 4 See Robinson v. Commonwealth, 273 Va. 26, 34, 639 S.E.2d 217, 221 (2007) (“‘[T]he extent of the cur tilage is determined by factors that bear upon whether an individual reasonably ma y expect that the area in ques tion should be treated as the home itself.’” (quoting Dunn, 480 U.S. at 300)). Th is is because the term “curtilage,” as it is used in the legal context, is historically understood to refer to an extension of the home that is so intertwined with the home that the law must provi de it the same protection as the home itself. See Florida v. Jardines, 133 S. Ct. 1409, 1414-15 (2013) (“Just as the dis tinction between the home and the open fields is as ol d as the common law, so too is the identity of home and what Blackstone called the ‘curtilage orhomestall,’ for the ‘house pr otects and privileges all its branches and appurtenants.’” (quoting 4 William Blackstone, Commentaries *223, *225)); Jefferson v. Commonwealth, 27 Va. App. 1, 15 n.2, 497 S.E.2d 474, 481 n.2 (1998) (“The concept that the legal protections afforded to a dwelling house also extend to the curtilage originated at common law.”). Because “curtilage” is properly defined at common law by its relationship to the residence and its use by its occupa nts, we reject as erroneous th e trial court’s conclusion that

4 The appellate courts of the Commonwealth ha ve applied Bare’s defi nition of “curtilage” in numerous legal contexts. See, e.g., Wellford v. Commonwealth, 227 Va. 297, 302, 315 S.E.2d 235, 238 (1984) (applying Bare in the Fourth Am endment context); Pettus v. Commonwealth, 123 Va. 806, 809, 96 S.E. 161, 162 (1918) (applying Ba re in the prohibit ion law context); Kearney v. Commonwealth, 4 Va. App. 202, 204-05, 355 S.E.2d 897, 898 (1987) (discussing Bare in the Fourth Amendment context).- 7 - non-exclusive easements are per se excluded from being considered part of a home’s curtilage within the meaning of this statute. Wh ile an area’s use by third parties may be relevant in determining whether the area is in the home’s cu rtilage, that fact alon e does not categorically exclude it. Instead, courts must look to the ar ea’s use and connection to the home itself rather than its use by third parties. Conversely, this Court also rejects Foley’s argument that simply because he owned the property on which he was standing at the time of the offense, he was within the curtilage of his home and therefore exempt under subsection (B ) from criminal prosecution under subsection (A). Such an interpretation of curtilage would depr ive the courts of an inqui ry into the particular use of the area in question and its relationship with the home. Moreover, if the General Assembly intended Code § 18.2-308(B) to exempt individuals standing on any portion of their property then it would not have chosen to use the more narrow terms “place of abode or the curtilage thereof.” See Chandler v. Peni nsula Light & Power Co., 152 Va. 903, 906, 147 S.E. 249, 250 (1929) (“Where the language used is clear but is not as broad as it might have been, the court cannot give to the words us ed a new meaning in order to ma ke them include that which the letter of the law excludes.”). The Commonwealth urges this Court to appl y the United States Supreme Court’s fourfactor test articulated in Dunn to determine the extent of a home’s curtilage. The Dunn Court carefully noted that the factor s were not intended to be a precise mathematical formula for determining the extent of a home’s curtilage. Dunn, 480 U.S. at 301. Rather, the “factors are useful analytical tools only to the degree that, in any given ca se, they bear upon the centrally relevant consideration—whether the area in questi on is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. The four factors are: “[(1)] the proximity of the area claimed to be curt ilage to the home, [(2)] whether- 8 - the area is included within an enclosure surrounding the home, [(3)] the nature of the uses to which the area is put, and [(4)] the steps take n by the resident to protect the area from observation by people passing by.” Id. “‘It is a cardinal principle of law that 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 th e statute.’” Barnes v. Commonwealth, 61 Va. App. 495, 498, 737 S.E.2d 919, 921 (2013) (quoting Wa de v. Commonwealth, 202 Va. 117, 122, 116 S.E.2d 99, 103 (1960)). Although the fi rst three factors of Dunn’s fou r-factor test are rooted in the common law origins of the term “curtilage,” the “centrally relevant consideration” in determining the extent of the home’s curtila ge was whether the ar ea should benefit from Fourth

Amendment protections. Dunn, 480 U.S. at 301. Conse quently, the Dunn Court added the fourth factor, which is only relevant in a Fourth Ame ndment context. Thus, Dunn and its progeny are a myriad of Fourth Amendment cases and represent factual and constitutional considerations that are not particularly relevant or applicable to a statutory interpretati on of Code § 18.2-308. Dunn’s fourth consideration, “the steps take n by the resident to protect the area from observation by people passing by,” while clearl y relevant to any Fourth Amendment determination concerning a subjec tive expectation of privacy, it is not an essentia l component of the common law definition of “curtilage.” Dunn a nd its progeny are best viewed as analytical tools for determining what portion of the overall curtilage of a hom e is afforded protection by the Fourth Amendment using the test announced in Katz v. United States, 389 U.S. 347 (1967). Because there is nothing to suggest that th e General Assembly intended to impose a more

restrictive definition of curtila ge than that found in the comm on law, considering whether the accused protected the area from observation by pe ople passing by in order to seek protection under Code § 18.2-308(B)’s exception would subject some individuals to criminal prosecution- 9 - whom the General Assembly clearly intended to statutorily exempt. 5 See, e.g., Harris v. Commonwealth, 274 Va. 409, 415, 650 S.E.2d 89, 91 ( 2007) (concluding that the Court was required to “construe Code § 18.2-308(A) strictly against the Commonwealthand to confine the statute to those offenses clearly proscribed by its plain terms,” because it is “the role of the General Assembly, not th[e] Court, to craft a ny needed revisions to Code § 18.2-308(A) and to

decide what items to include within the statut e’s proscription”). Be cause defendants “‘[are]

entitled to the benefit of any reasonable doubt about the constr uction of a penal statute,’” id., the

law favors the common law’s more inclusive defini tion of “curtilage,” rather than Dunn’s more exclusive four-factor test adopted for Fourth Amendment purposes. Additionally, using the Dunn four-factor test in determining the boundaries of a home’s curtilage is inconsistent with the General Assemb ly’s use of the term in other sections of the Code. For example, Code § 64.2-307 allows a su rviving spouse to “enjoy the principal family

residence and curtilage without charge for rent, repairs, taxes, or insurance.” (Emphasis added). If the Dunn factors were applicab le outside of the Fourth Amendm ent context as the established method of determining the extent of a home’s curt ilage, a surviving spouse would not be entitled

to those benefits in areas that he or she did not take steps to protect fr om observation—a result the General Assembly could not have intended. A more logical reading of the statute is that the

5 There are foreseeable circumstances where Dunn’s fourth factor would place an area squarely outside the reach of Fourth Amendmen t protections, notwithstan ding the fact that a plain reading of the statute and the purpose behind subsecti on (B)’s curtilage exception demonstrates an obvious intent to exempt that area from prosecution und er subsection (A)—for example, a front yard or an unfenced backyard. See, e.g., United States v. Vankesteren, 553 F.3d 286, 290 (4th Cir. 2009) (applying Dunn and finding th at the “land must be classified as open fields and not curtilage” because, among other thi ngs, the defendant did not take steps to protect the area from observation as evidenced by the fact that “there was no indicat ion that the interior fences were designed to keep people out”); United States v. Breza, 308 F.3d 430, 436 (4th Cir. 2002) (finding that the fourth Dunn factor weig hed against a determina tion that the area was curtilage because “it d[id] not appear that [the defendant] made any additi onal effort to conceal the vegetable garden from public view”).- 10 - General Assembly intended for the surviving spouse ’s benefits pertaining to principal residence to include those “necessary and c onvenient” areas that are “habitu ally used for family purposes and the carrying on of domestic employment.” Bare, 122 Va. at 794, 94 S.E. at 172. For the reasons stated above, we theref ore hold that the comm on law definition of curtilage articulated in Bare is applicable to Code § 18.2-308(B) b ecause it is cons istent with a plain reading of the statute, th e legislature’s intent, and the we ll-established rules of statutory interpretation. Having determin ed the appropriate standard fo r determining the extent of a home’s curtilage under Code § 18.2-308(B), we now tu rn to its applicability to the case at hand. B. Code § 18.2-308(B) Is a Statutory Defense. The “bedrock of Virginia’s criminal juri sprudence” is the fundamental precept that the

Commonwealth bears the burden of proving every essential element of an offense beyond a

reasonable doubt. Williams v. Commonw ealth, 57 Va. App. 341, 351, 702 S.E.2d 260, 265 (2010). However, generally, it is the defendant that bears the burden of producing evidence in support of an affirmative defense. Id. In this case, Foley argued at th e trial court below, and now argues on appeal, that in orde r to convict him of carrying a c oncealed weapon in violation of Code § 18.2-308(A) the Commonwealth was requir ed to prove beyond a reasonable doubt that Foley was not on the curtilage of his abode at the time of the offense. The Commonwealth asserts on appeal that subsection (B) is a statut ory defense and that Fole y bore the burden of producing supporting evidence. The trial court di d not expressly rule whether the exception language in Code § 18.2-308(B) was a statutory defense or an element of the crime, but simply concluded that because the area where Foley was standing was subject to a non-exclusive easement it was therefore excluded from being part of the curtilage and “the exception language of the statute doesn’t apply.” Th erefore, in order to evaluate the sufficiency of the evidence in support of the trial court’s judgment, we must fi rst resolve whether subsec tion (B) is a statutory- 11 - defense to subsection (A) or, alternatively, a nega tive element of subsecti on (A). The resolution of this question will dictate wh ether Foley or the Commonwealthbore the burden of production on this point at trial. When this Court “constru[es] penal statutes which contain qualific ations, exceptions or exemptions to their application, the limiting langua ge may be viewed as a negative element of the offense which the prosecution must disprove,” or alternatively, as “a statutory defense, which

the accused can assert to defeat the prima facie case of the prosecution.” Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995); see, e.g., Flanagan v. Commonwealth, 58 Va. App. 681, 699, 714 S.E.2d 212, 220 ( 2011) (finding that “the last clause of Code § 18.2-85 constitutes a statutory defe nse for which an accused bears the burden of providing the supporting evidence”). In determin ing whether specific limiting language is either an element of the offense or a statutory defense this Court considers four factors: (1) “‘the wording of the exception and its ro le in relation to the other words in the statute;’” (2) “‘whether in light of the situation promp ting legislative action, the excepti on is essential to complete the general prohibition intended;’” (3) “‘whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e ., sets forth an affirm ative defense;’” and (4) “‘whether the matter is peculiarly within th e knowledge of the defe ndant.’” Flanagan, 58 Va. App. at 698, 714 S.E.2d at 220 (quoting Ma yhew, 20 Va. App. at 489, 458 S.E.2d at 307). Applying the Mayhew factors to Code § 18.2-30 8, it is clear that s ubsection (B) provides a statutory defense. First, the exception contai ned in subsection (B) whic h states that “[t]his section shall not apply to any person while in his own place of abode or the curtilage thereof,” is in a separate paragraph following subsection (A) wh ich sets forth the elements of the offense. Furthermore, subsection (B) is followed by subsec tions (C) and (D) which contain more than a dozen other exceptions where “this section shall not apply.” Consequentl y, subsection (B) is not- 12 - essential to complete the general prohibition against carrying conceal ed weapons without a permit. In fact, “requiring the Commonwealthto prove this negative would undermine the general prohibition intended by the legislature” because the Commonwealth would be required to prove in the negative allthe exceptions provided for in subsections (B)-(D). Williams, 57 Va. App. at 353, 702 S.E.2d at 265. If this Court we re to adopt Foley’s position, then in order to convict any defendant of carrying a concealedweapon, the Commonwealth in every such case would have to prove that none of the numerous exceptions found in the various subsections to Code § 18.2-308 applied, such as for example, that the defendant was not the “Harbormaster of the City of Hopewell.” Code § 18.2-308(D)(5). Thirdly, subs ection (B) excuses what would otherwise be criminal conduct under subsection (A ), carrying a concealed weapon, if the accused acts “in his own place of abode or the curtilage thereof.” Finally, whether the defendant was standing in an area habitually used for fam ily purposes and the carrying on of domestic employment—and therefore within the curtilage of his home—r equires evidence that is “‘peculiarly within the knowledge of the defendant.’” Flanagan, 58 Va. App. at 698, 714 S.E.2d at 220 (quoting Mayhew, 20 Va. App. at 489, 458 S.E.2d at 307). Consequently, the exception language in subsec tion (B) is not a negative element of the offense, but rather an affirmative defense. Howe ver, as this Court prev iously noted in Tart v. Commonwealth, 52 Va. App. 272, 276 n.2, 663 S.E.2d 113, 115 n.2 (2008), there is no uniform rule in Virginia regarding the burden of persua sion for affirmative defenses. “Instead, the determination of which party ha s the burden of persuasion turns on which affirmative defense is being asserted.” Id. Compare Simopolous v. Commonwealth, 221 Va. 1059, 1069, 277 S.E.2d 194, 200 (1981) (holding that a defendant charge d with a violation of Virginia’s abortion regulation must “invoke[]” the affirmative de fense of medical necessity, but that the Commonwealth “has the burden of negating [the defense] beyond a reasonable doubt[]”), aff’d,- 13 - 462 U.S. 506, 510 (1983), with McGhee v. Commonwealth, 219 Va. 560, 561, 248 S.E.2d 808, 809 (1978) (rejecting the appellant’ s argument that she was entitled to a jury instruction stating that the Commonwealth “ha[d] the burden of disproving beyond all reasonable doubt [her] affirmative plea of self-defense”). Here, given the number and nature of the statutory exceptions found in Code § 18.2-308, we hold that Foley was required to satisfy hi s burden of persuasion by pointing to evidence presented by the Commonwealth or presenting ev idence on his own behalf sufficient to allow him to invoke a statutory exception. In the context of the exception Foley claimed was applicable in this case, he needed to point to or produce evidence that at the time of the offense he was standing in a “necessary and convenient” area that was “habitua lly used for family purposes and the carrying on of domestic employmen t.” However, viewing the facts in the light

most favorable to the Commonwea lth, Foley failed to establish that he was standing on anything more than just property he owned. The record co ntains insufficient evidence that the section of Holly Tree Road where Foley was standing at the time of the offense was “habitually used for family purposes” or “the carrying on of dome stic employment.” Although Foley was only twenty feet away from his house, there was a steep slope between his location in the road and his home. While Holly Tree Road bisects Foley’s prope rty, there is no evidence in the record that he

used either the road itself or th e property on the other side of th e road for anything but storing his farming equipment or as a “junk yard.” In short, no evidence was presented that Foley used the portion of his property where he wa s arrested as an extension of the home to the degree that the law provides it the same protection as the home itsel f. We therefore conclude that the evidence in the record supports a finding that Foley failed to produce evidence that he was on the curtilage of his home at the time of the offense, and as a result, could avail himself of the statutory exception contained in Code § 18.2-308(B).- 14 - III. C ONCLUSION In light of the foregoing, a lthough it applied the wrong reason ing, the trial court did not err when it concluded that the statutory ex ception contained in Code § 18.2-308(B) did not apply, and we therefore affirm Foley’s conviction for carrying a concealed weapon in violation of Code § 18.2-308(A).

Affirmed.