COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Clements Argued at Chesapeake, Virginia

BRYAN DAVID AUER OPINION BY v. Record No. 0851-04-1 JUDGE JEAN HARRISON CLEMENTS OCTOBER 25, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Edward W. Hans on, Jr., Judge Afshin Farashahi (Afshin Farashah i, P.C., on brief), for appellant. Virginia B. Theisen, Assistan t Attorney Genera l (Judith Williams Jagdmann, Attorney General; Alice T. Armstrong, Assistant Attorney General, on brief), for appellee.
Bryan David Auer was convicted by a jury of aggravated involuntary manslaughter, in violation of Code § 18.2-36.1, an d driving under the influence of alcohol (DUI), in violation of Code § 18.2-266. On app eal, Auer contends the trial court erre d during the punishment phase of his trial by admitting into evidence hi s prior misdemeanor co nviction under a city ordinance for DUI. Finding no error, we affirm the trial cour t’s judgment.
I. BACKGROUND On August 4, 2003, Auer was indicted by a grand jury for ag gravated involuntary manslaughter and DUI, second of fense. On the Comm onwealth’s motion, the latter indictment was amended prior to trial to DUI, first offense. Af ter hearing the evidence pr esented at trial on those charges, a jury convicted Auer of DUI, first offens e, under Code §§ 18 .2-266 and 18.2-270, and aggravated involuntary manslaug hter, under Code § 18.2-36.1.- 2 - During the punishment phase of the trial, the Commonwealth sought to introduce into evidence a certified copy of a general district cour t order reciting Auer’s prior criminal conviction for misdemeanor DUI, in violation of Virginia Beach City Code § 21-336. Rejecting Auer’s argument that evidence of a prior conviction base d on a city ordinance was inadmissible under Code § 19.2-295.1, the tria l court admitted the or der into evidence. 1
At the conclusion of th e punishment phase of the trial, the jury fixed Auer’s punishment at nine years and six months of incarceration on the manslaughter charge and twelve months of incarceration on the DUI charge. The trial court subsequently senten ced Auer pursuant to the jury’s verdict. This appeal followed.
II. ANALYSIS Auer contends, on appeal, that Code § 19.2-295.1 prohibits the Commonwealth from presenting evidence at the punishment phase of a bifurcated jury trial of a defendant’s prior convictions under local laws. Thus, he concludes, the trial court erred in admitting into evidence his prior conviction for misdemeanor DUI, which was based on Virginia Beach City Code § 21-336, and the case must be remanded for resentencing. We disagree. “‘[T]he admissibility of evidence is within the broad discretion of the trial court, and [its ruling thereon] will not be disturbed on appeal in the absence of an abuse of discretion.’” Jones v. Commonwealth , 38 Va. App. 231, 236, 563 S.E.2d 364, 366 (2002) (quoting Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). However, “a trial court ‘by definition abuses its discretion when it make s an error of law.’” Shooltz v. Shooltz , 27 Va. App.

1 At the same time, the trial court also admitted a copy of a prior conviction order for disorderly conduct. Although that conviction was al so based on a violation of a city ordinance, Auer raises no challenge on appeal to the admissi on of that order. Accordingly, we need not address that matter further.- 3 - 264, 271, 498 S.E. 2d 437, 441 (1998) (quo ting Koon v. United States , 518 U.S. 81, 100 (1996)). “In determining whether the trial court made an error of law, ‘w e review the trial court’s statutory interpretations and legal conclusions de novo .’” Rollins v. Commonwealth , 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2 001) (quoting Timbers v. Commonwealth , 28 Va. App. 187, 19 3, 503 S.E.2d 233, 236 (1998)). Code § 19.2-295.1 provides in pertinent part that, at the punishment phase of a bifurcated jury trial, the Commonwealth shall present the defendant’s prior criminal convictions by certified, attested or exemplified copies of the record of conviction, including ad ult convictions and juvenile convictions and adjudications of delinquency. Prior convictions shall include convictions and ad judications of delinquency under the laws of any state, the District of Columbia, the United States or its territories. As framed by Auer, the sole issue in this appeal is whether the trial court violated the terms of Code § 19.2-295.1 when, during the puni shment phase of trial, it allowed the Commonwealth to present evidence to the jury of Auer’s DUI conviction for violating Virginia Beach City Code § 21-336. Auer contends Code § 19.2-295.1 prohibits the admission into evidence of convictions based on local laws; the Commonw ealth insists the statute contains no such prohibition. At the center of this dispute is the question whether Auer’s DUI conviction for violating Virginia Beach City Code § 21-336 is a “prior conviction,” as that term is used in Code § 19.2-295.1. Auer argues that, because penal stat utes are to be construe d strictly against the Commonwealth, Code § 19.2-295.1’s provision that “[p]rior c onvictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories” shoul d be read as providing an exhaustive list of the convictions that may be presented to the jury at sentencing. Thus, Auer’s argument- 4 - continues, the omission of convictions under local la ws from that list refl ects the legislature’s intent that such convictions not be considered by the jury in fixing a convicted defendant’s punishment. To hold otherwise, Auer maintains, would be to add terms to the statute and to conclude that the legislature did no t mean what it actually expressed. The Commonwealth claims that Auer’s readi ng of Code § 19.2-295.1 is too restrictive. Nothing in the language of the statute itself, the Commonwealth argues, indicates that the legislature intended to prohibit the presentation at sentencing of prior convictions under local laws. Moreover, the Commonwealth adds, r eading such a prohibition into Code § 19.2-295.1 would defeat the statute’s purpose. We recognize that “it is ou r function to interpret the meaning of the words in controversy as intended by the legislature.” Tiller v. Commonwealth , 193 Va. 418, 420, 69 S.E.2d 441, 442 (1952). However, “unl ess there is ambiguity in a statute, there is no need for interpretation, for the province of construction lies wholly within th e domain of ambiguity.” Id. “Words are ambiguous if they adm it to ‘being understood in more than one way[,]’ . . . refer to ‘two or more things simultaneously[,]’ . . . are ‘difficult to comprehe nd,’ ‘of doubtful import,’ or lack ‘clearness and definiteness.’” Diggs v. Commonwealth , 6 Va. App. 300, 301-02, 369 S.E.2d 199, 200 (1988) [(en banc)] (quoting Brown v. Lukhard , 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)). Gilliam v. Commonwealth , 21 Va. App. 519, 522, 465 S.E.2d 592, 594 (1996) (first two alterations in original). “Ordin arily, when a particular word in a statute is not defined therein, a court must give it its ordinary meaning.” Moyer v. Commonwealth , 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000) (en banc). Whether the legislature inte nded to exclude convictions under local laws from the meaning of “prior convictions,” a nd thus prohibit the presentation of such convictions to the jury at sentencing, is not apparent on the f ace of Code § 19.2-295.1. As noted above, Code § 19.2-295.1 provides that “[p]rior c onvictions shall include convict ions . . . under the laws of- 5 - any state, the District of Columb ia, the United States or its territo ries.” The determinative word is “include,” which means “to . . . list . . . as a part or component of a whole or of a larger group, class, or aggregate.” Webster’s Third New International Dictionary 1143 (1993). Generally speaking, the word “include” implies that the provided list of parts or components is not exhaustive and, thus, not exclusive. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co. , 314 U.S. 95, 100 (1941) (no ting that “the term ‘inc luding’ is not one of all-embracing definition, but connotes simply an illustrative applica tion of the general principle”); Fed. Elect ion Comm’n v. Mass. Citizens for Life , 769 F.2d 13, 17 (1st Cir. 1985), aff’d , 479 U.S. 238 (1986) (observing that the wo rd “includes” is “‘usually a term of enlargement, and not of limitation” and therefor e “‘conveys the conclusion that there are other items includable, though not sp ecifically enumerated’” (quo ting 2A Norman J. Singer, Sutherland Statutes and Statutory Construction 133 (4th ed. 1984) (internal quotation marks omitted))); Highway & City Freight Drivers Local No 600. v. Gordon Transports, Inc. , 576 F.2d 1285, 1289 (8th Cir. 1978) (noting that, when the word “include” is used in a statute to define a term, “the fact that the statute does not specifical ly mention a particular entity . . . does not imply that the entity falls outside of th e definition”); Black’s Law Dictionary 777 (8th ed. 2004) (“ [I]ncluding typically indicates a pa rtial list . . . .”). However, the word “include” is also commonl y used in a restrictive, limiting sense. Helvering v. Morgan’s, Inc. , 293 U.S. 121, 125 (1934) (recognizing that “the term ‘includes’ may sometimes be taken as synonymous with ‘m eans’”); Bryan A. Garner, A Dictionary of Modern American Usage 363 (1998) (remarking that the word “include,” “which traditionally has introduced a nonexhaustive list, is now . . . widely []used for consists of ”). Used in this limiting sense, the term typically introduces an exhaustive list of all of the components or members that make up the whole. See Garner, supra ; Random House Webster’s College- 6 - Dictionary 667-68 (2000) (“ Include means to contain as a part or member of a larger whole; it may indicate one, several, or all parts .” (second emphasis added)). Thus, when a statute uses the word “include” in this restrictive, limiting se nse to define a term, it sets forth the entire definition, and no other elements or items are includable. Conseque ntly, the fact that the statute does not expressly enumerate a pa rticular item implies that the item “falls outside of the definition.” Highway & City Freight Drivers , 576 F.2d at 1289; see County of Amherst Bd. of Supervisors v. Brockman , 224 Va. 391, 397, 297 S.E.2d 805, 808 (1992) (holding that the courts “may not add to a statute language” that the le gislature intended not be included therein). Because the word “include” is susceptible to more than one meaning and because it is not immediately clear from the word’s context which meaning is mean t to apply in Code § 19.2-295.1, we conclude that the st atute’s provision that “[p]ri or convictions shall include convictions . . . under the laws of any state, the District of Columbia, th e United States or its territories” is ambiguous. See Brown v. Lukhard , 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) (noting that words are ambiguous if they admit to “being understood in more than one way” or lack “clearness and defin iteness”). See generally Liverpool v. Baltimore Diamond Exch., Inc. , 799 A.2d 1264, 1274 (Md. Ct. Spec. App. 2002) (recognizin g that “the term ‘includes,’ by itself, is not free from ambiguity” because it “has various shades of meaning,” ranging from enlargement and expansion to limitati on and restriction); Frame v. Nehls , 550 N.W.2d 739, 742 (Mich. 1996) (“When used in the text of a statute, the word ‘includes’ can be used as a term of enlargement or of limitation, and the word in and of itself is not determinative of how it is intended to be used.”). “Therefore, we are calle d upon to construe this statutory language in a manner that will ascertain and give effect to the General Assembly’s intent.” Herndon v. St. Mary’s Hosp., Inc. , 266 Va. 472, 475, 587 S.E.2d 567, 569 (2003).- 7 - In seeking to resolve the ambiguity in the st atutory language and disc ern the legislature’s intent, we apply established principl es of statutory interpretation. See Va. Dep’t of Labor & Industry v. Westmoreland Coal Co. , 233 Va. 97, 101-02, 353 S.E.2d 758, 762 (1987). Consistent with such principles, we interpret th e statute so as “to prom ote the end for which it was enacted, if such an interpretation can re asonably be made from the language used.” Mayhew v. Commonwealth , 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995). Thus, the “statute must be construed with reference to it s subject matter, the objec t sought to be attained, and the legislative purpose in enacting it; the prov isions should receive a construction that will render it harmonious with that purpose rather than one which will defeat it.” Esteban v. Commonwealth , 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003). Furthermore, although “[i]t is a cardinal principle of law that penal statutes are to be construed strictly against the [Commonwealth]” and “cannot be ex tended 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), “we will not apply ‘a n unreasonably restrictive inte rpretation of the statute’ that would subvert the legislative intent e xpressed therein,” Arms trong v. Commonwealth , 263 Va. 573, 581, 562 S.E. 2d 139, 144 (2002) (quo ting Ansell v. Commonwealth , 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)). Applying these principles to the provisi on of Code § 19.2-295.1 at issue here, we conclude that the statutory inte rpretation urged by Auer is cont rary to the manifest purpose of Code § 19.2-295.1. Plainly, the legi slative intent underlying Code § 19.2-295.1 is to assure that sufficient information regarding th e convicted defendant’s criminal record is provided during the punishment proceeding to enable the jury “‘to impose the sentence as seemed to them to be just.’” Hartigan v. Commonwealth , 31 Va. App. 243, 254, 522 S.E.2d 406, 411 (1999) (quoting Coward v. Commonwealth , 164 Va. 639, 646, 178 S.E. 797, 800 (1935)), aff’d en banc , 32- 8 - Va. App. 873, 531 S.E.2d 63 (2000). “‘The sentencing decision . . . is a quest for a sentence that best effectuates the criminal justice system’s goals of deterrence (g eneral and specific), incapacitation, retribution and rehabilitation.’” Gilliam , 21 Va. App. at 524, 465 S.E.2d at 594 (quoting United States v. Morris , 837 F. Supp. 726, 729 (E.D. Va. 1993 )). “Manifes tly, the prior criminal convictions of a felon . . . ‘“bear upon a tendency to commit offenses, the probabilities of rehabilitation, and similar factors”’ indispen sable to the determination of an appropriate sentence.” Id. at 524, 465 S.E.2d at 595 (quoting Thomas v. Commonwealth , 18 Va. App. 656, 659, 446 S.E.2d 469, 472 (1994) (internal quotation marks omitted)). As we explained in Hartigan , “[i]n contrast to the unitary sy stem [in effect prior to Code § 19.2-295.1’s enactment], in which juries [in non- capital cases] determined guilt and sentencing based only on the facts germane to the offense a nd the range of punishment available, the jury now is given a much broader range of inform ation under the bifurcated procedure.” Id. at 255, 522 S.E.2d at 411. “Such information ensures an individualized assessment of a defendant’s previous criminal conduct in the context of th e subject offense, thereby promoting a more informed determination of sentence.” Gilliam , 21 Va. App. at 523, 465 S.E.2d at 594. To that end, “Code § 19.2-295.1 creates a category of eviden tiary admissibility. It is not a rule of evidentiary exclusion.” Gilley v. Commonwealth , 21 Va. App. 740, 744, 467 S.E.2d 312, 313 (1996). It follows, therefore, that, as we stated in consideration of a re lated issue in Bunn v. Commonwealth , 21 Va. App. 593, 598, 466 S.E.2d 744, 746 (1996) (emphasis added), [t]he obvious purpose of Code § 19.2-295.1 is to allow the jury, which will be recommending sentence, to consider the defendant’s . . . current record of criminal convictions. Nothing in the language or logic of the statute suggests that the legislature intended to limit the jury’s consid eration to anything other than the defendant’s complete criminal record.- 9 - Indeed, had the legislature intended to speci fically limit the prior convictions the jury could consider in a sentencing proceeding to only those convictions under the jurisdictions enumerated in the statute, it could ha ve done so unequivocally. See, e.g. , Code § 16.1-330.1 (“Qualifying convicti ons or adjudications shall include only those for offenses occurring after July 1, 1993.” (emphasis added)); C ode § 24.2-101 (“[R]egistered voter” shall include only persons maintained on the Virginia voter regist ration system with active status.” (emphasis added)); Code § 58.1-3506.1 (“For purposes of this article, the term motor vehicle shall include only automobiles and pickup trucks.” (emphasi s added)); Code § 54.1-1118 (“‘Improper or dishonest conduct’ includes only the wrongful taking or conversi on of money, property or other things of value which involves fraud, material misrepresentation or conduct constituting gross negligence . . . . The term ‘improper or dishonest conduct’ does not include mere breach of contract.” (emphasis omitted and emphases added)); Code § 38.2-1800 (“‘Limited lines property and casualty agent’ means an individual or business entity authorized by the Commission whose license authority to sell, solicit, or negotiate is limited to the following . . . : automobile club authority; home protection insurance authority; lega l services insurance aut hority . . . . Limited lines property and casualty insurance shall not include life insurance, health insurance, property insurance, casualty insurance, and title insu rance.” (emphases added)). But, it did not. 2 It is beyond dispute that, were we to read Code § 19.2-295.1 as prohibiting the presentation at sentencing of convictions under local laws, as Auer urges, the jury, in cases such

2 Auer points to Code § 18.2-270(E) as an exampl e of a statute that explicitly refers to local ordinances, and argues based thereon that the omission of the same term from Code § 19.2-295.1 was intentional and meaningful. Ho wever, Code § 18.2-270 differs from Code § 19.2-295.1 both in purpose and in legal context. B ecause the legislature expressed a concern in Code § 18.2-270 for laws “substantially similar” to those listed in Code § 18.2-270, the inclusion of “ordinances of any county, city or town of th is Commonwealth” served to precisely define the nature of the second offense that could be used for enhanced punishment. A term-by-term comparison with Code § 18.2-270 is of little value to us here in determining the legislative intent behind Code § 19.2-295.1.- 10 - as this, would not have the convicted defendant’s complete criminal record before them in determining the appropriate punish ment to recommend. Such a reading of the statute would clearly undermine the legislative intent expressed therein of allowing the jury to consider the defendant’s complete criminal record at sentencing. We conclude, therefore, that, consistent with the manifest purpose of the statute, Code § 19.2-295.1 does not provide an exclusive definition of the term “prior convictions ” and, thus, does not pr ohibit the presentation at sentencing of convictions under local laws. Rather, the statut e’s provision that “[p]ri or convictions shall include convictions . . . under the la ws of any state, the District of Columbia, the United States or its territories” indicates that the prior convictions the Commonw ealth may present at sentencing are not limited to convictions under the statut es contained in the Code of Virginia. 3 Accordingly, we hold that the trial court did not err in al lowing the Commonwealth to present evidence of Auer’s misdemeanor DUI conviction for violating Virginia Beach City Code § 21-3 36. This resolution of the issue is buttressed by the fact that Auer’s reading of Code § 19.2-295.1 would yield the in consistent result of permitting the Commonwealth to present evidence at sentencing of a pr ior conviction under Code § 18.2-266 but not under Virginia Beach City Code § 21-336, even though both statutes refer to th e same driving under the influence offense. 4 See Cook v. Commonwealth , 268 Va. 111, 116, 59 7 S.E.2d 84, 87 (2 004) (noting that

3 In reaching this conclusion, we do not mean to suggest that evidence of a criminal conviction from another country wo uld be admissible. See, e.g. , Small v. United States , 544 U.S. ___, ___, 125 S. Ct. 1752, 1758 (2005) (holding th at 18 U.S.C. § 922(g)(1), which forbids “any person . . . convicted in any court . . . of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess . . . a ny firearm,” encompasses only domestic, not foreign, convictions (emphasis added)). That ma tter is not before us in this case.

4 Virginia Beach City Code § 21-336 provides as follows: Section 18.2-266 of the Code of Virginia (1950), as amended, which pertains to drivi ng or operating any motor vehicle, engine or train while intoxi cated, is hereby adopted and incorporated mutatis mutandis into this section by reference, as- 11 - “our case law uses the phrase ‘absurd result’ to describe situations in which the law would be internally inconsistent”). “[A] statute should never be construed so that it leads to absurd results.” Branch v. Commonwealth , 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). Consequently, “[w]here a particular construction of a statute will result in an absurdity, some other reasonable construction which will not produce the absurdit y will be found.” Mi ller v. Commonwealth , 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942).
III. CONCLUSION For these reasons, we affirm the trial court’s judgment. Affirmed.

authorized by section 46.2-1313 of th e Code of Virginia. Pursuant to the provisions of section 1-13.39:2 of the Code of Virginia, the incorporation of the above-refere nced section of the Code of Virginia shall include all future amendments to that section.