COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judg e Alston and Senior Judge Fra nk Argued at Norfolk, Virginia

JOSHUA SAQUAN M AURICE ELEY OPINION BY v. Record No. 0625-18-1 CHIEF JUDGE M ARLA GRAFF DECKER APRIL 16, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Gary A. Mills, Judge Catherine A. Tatum, Assistant Public Defender, for appellant. Victoria Johnson, Assistant Attorney General ( Mark R. Herring , Attorney General, on brief), for appellee.
Joshua Saquan Maurice Eley appe als his misdemeanor conviction for carrying a loaded firearm equipped with a high- capacity magazine in public in vio lation of Code § 18.2-287.4. On appeal, he suggests that he was en titled to the statutory exemp tion in Code § 18.2-308(C)(8) for a firearm carried in “a personal, pr ivate motor vehicle” and that the circuit court er red in ruling to the contrary. We hold that th e exemption does not apply becaus e the record establishes that the appellant knew that the truck i n which he secured the firearm w as stolen and, thus, it was not “a personal, private motor vehicle” within the meaning of the statutory exemption. Consequently, we affirm the chall enged conviction.
I. BACKGROUND On the evening of October 10, 2017, two detectives with the City of Newport News Police Department were patro lling within the city when they saw the appellant and another man sitting in a parking lot ope n to the public in a pickup truck t hat had been reported stolen. As the detectives approached, the appe llant “quickly” got out of the d river’s side of the vehicle andPUBLISHED- 2 - “tr[ied] to go away from it.” T hey detained and questioned him . The appellant said that he “had gotten the vehicle from s omeone . . . that he . . . did not kno w very well.” He “admitted having a feeling that . . . something [wa s] wrong with the vehicle,” but he “never admitted . . . knowing that the vehicle was stolen.” One of the detectives asked the appellant whether any firearms were in the truck. The appellant said yes and directed hi m to the center console, whic h was “secured with a latch.” Upon opening the console, the det ective found and seized a “cen ter fire” .357-caliber, semiautomatic handgun. The weapon, which was loaded, “had an e xtended magazine with a 31-cartridge capacity.” The appellant was charged wit h grand larceny of the pickup tru ck in violation of Code § 18.2-95 and misdemeanor possessi on of a firearm with a magazi ne capacity of twenty or more rounds in violation of Code § 18.2- 287.4. By agreement with th e Commonwealth, the appellant entered a guilty plea to the le sser charge of receiving stolen property, based on his possession of the truck, in violation of C ode § 18.2-108. He entered a plea of not guilty to the misdemeanor firearm charge. Following presentation of the Commonwealth’s evidence related t o the firearm offense, the appellant made a motion to s trike. He argued that he was e ntitled to posse ss the loaded firearm pursuant to a statuto ry exemption because the gun was s ecured within the stolen truck in a specified fashion. The prosecuto r argued that the plain lang uage of the statutory exemption showed that the General Assemb ly did not intend for the exempti on to cover firearms secured in stolen vehicles. The trial cour t accepted the Commonwealth’s r eading of the statute and denied the motion to strike. The court r easoned that this interpretat ion “comports with our sense of privacy” because no “right to pr ivacy [exists] in a personal, p rivate stolen motor vehicle.”- 3 - (Emphasis added). The appell ant was found guilty and sentenced to twelve months of incarceration for the firearm offe nse, with all twelve months s uspended, and a $250 fine.
II. ANALYSIS Where the “appellant argues th at the trial court, under the fa cts adduced at trial, misapplied a statutory exception to the prohibition on carrying a concealed weapon[,] . . . the argument presents a mixed question of law and fact, which we re view de novo on appeal.” Hodges v. Commonwealth, 64 Va. App. 687, 693 (2015). The facts in this case are not in dispute. Consequently, the issu e is one of pure statutory inte rpretation, “a question of law . . . review[ed] de novo .” Doulgerakis v. Comm onwealth, 61 Va. App. 417, 419 (2013) (q uoting Wright v. Commonwealth, 278 Va. 754, 759 (2009)). Code § 18.2-287.4(a) provides in rel evant part that it is unla wful “to carry a loaded . . . semi-automatic center-fire ri fle or pistol that expels . . . pr ojectiles by action of an explosion of a combustible material and is e quipped . . . with a magazine that will hold more than 20 rounds of ammunition . . . on or about his person” in any place “open to the public” in various jurisdictions within the Commonwealth, incl uding the City of Newport News. T he statute incorporates exemptions set out in two ot her provisions, Code §§ 18.2-308 an d -308.016. Code § 18.2-287.4. As pertinent here, Code § 18.2-308( C)(8) provides an exemption for “[a]ny person who may lawfully possess a firearm and i s carrying a handgun while in apersonal, private motor vehicle or vessel and such handgun is secured in a container or compart ment in the vehicle or vessel.” See generally Doulgerakis, 61 V a. App. at 420 (recognizing enac tment of the exemption in 2010 under a different subsection of the statute). “[T]he Commonwea lth bears the burden of establishing that the exe mption . . . does not apply.” Hodges, 64 Va. App. at 694, 699. It is undisputed here that posse ssion of the type of loaded fi rearm that the appellant carried in the center console of the pickup truck was proscribe d by Code § 18.2-287.4(a). The- 4 - challenge concerns whether the appellant is entitled to invoke the exemption contained in Code § 18.2-308(C)(8). The Commonwealt h concedes the sufficiency of the evidence to prove two of the three elements required for the exemption—that the appellan t was “lawfully [permitted to] possess a firearm” and the firearm was “secured in a container or compartment” in a vehicle. See Code § 18.2-308(C)(8). See ge nerally Logan v. Commonwealth , 47 Va. App. 168, 172 (2005) ( en banc ) (“On purely factual ques tions . . . , we can and do rely on t he adversarial process to sort out the contes ted and the uncontested aspects o f the case before we begin our responsibility of applying de novo the correct legal principles .”). The only part of entitlement to the exemption that is in dispute concerns whether the appellant , who was in the driver’s seat of a stolen pickup truck and pleade d guilty to possessing the truck with knowledge that it was stolen, possessed the secured handgun “whil e in a personal, private mot or vehicle” in the context of the statute. We conduct our analysi s taking into account well-established principles of statutory construction. “The Virginia Supreme Court ha s long held that ‘when analyzing a statute, we must assume that “the legislature chos e, with care, the words it use d . . . and we are bound by those words as we [examine] the statute.”’” Doulgerakis, 61 Va. App. at 420 (first alteration in original) (quoting City of Va. Beach v. ESG Enters., 243 Va. 14 9, 153 (1992)). “[C]ourts ‘are required to ascertain and give e ffect to the intention of the l egislature, whi ch is usually self-evident from the statutory language.’” Armstead v. Common wealth, 55 Va. App. 354, 360 (2009) (quoting Johnson v. Com monwealth, 53 Va. App. 608, 612 ( 2009)). Consequently, we “apply[] the pl ain meaning of the words unless they are ambiguous or [doing so] would lead to an abs urd result.” Wright, 278 Va. at 759. A statute is ambiguous if “the text can be understood in mor e than one way or refers to t wo or more things simultaneously [or] [if] the language is diffi cult to comprehend, is of doubtf ul import, or lacks clearness or- 5 - definiteness.” Blake v. Commonwealth, 288 Va. 375, 381 (2014) (first alteration in original) (quoting Boynton v. Kilgore, 271 Va. 220, 227 n.8 (2006)). Onl y if a statute is found to be ambiguous may the Court consider o ther factors such as the purp ose, reason, and spirit of the law, including any legislative history. See, e.g., Thomas v. C ommonwealth, 256 Va. 38, 41 (1998); Simpson v. Simpson, 162 Va. 621, 635 (1934); Auer v. Co mmonwealth, 46 Va. App. 637, 647-48 (2005). In considering the meaning of part icular language in context, “ [w]ords in a statute should be interpreted, if possible, t o avoid rendering [other] words s uperfluous.” Cook v. Commonwealth, 268 Va. 111, 114 (2004); see Epps v. Commonwealth , 47 Va. App. 687, 714 (2006) ( en banc ) (requiring a court to “giv[e] to ever y word and every part of the statute, if possible, its due effect and m eaning” (quoting Posey v. Commonw ealth, 123 Va. 551, 553 (1918))), aff’d, 273 Va. 410 (2007). I f the meaning of a word is clear “in context,” it is not ambiguous merely because it “has a variety of different definit ions.” Blake, 288 Va. at 382. Finally, penal statutes are to be construed “strictly against t he Commonwealth,” giving defendants “the benefit of a ny reasonable doubt about the[ir] c onstruction.” Foley v. Commonwealth, 63 Va. App. 186, 192, 198 (2014) (quoting Harris v. Commonwealth, 274 Va. 409, 415 (2007)). “[N]evertheless[,] a defendant is not entitl ed to . . . an ‘unreasonably restrictive interpre tation of [the law].’ ” Grimes v. Commonwea lth, 62 Va. App. 470, 480 (2013) (quoting Holloman v. Commonwealth, 221 Va. 196, 198 (1980)), af f’d, 288 Va. 314 (2014). With regard to the statutory exe mption at issue, neither the p hrase “a personal, private motor vehicle” nor the individua l words “personal” or “private” is defined in any of the relevant code sections. Where a “statu te’s terms are undefined” by the legislature, we give those terms “their ‘ordinary meaning,’ in li ght of ‘the context in which [t hey are] used.’” Va. Marine Res. Comm’n v. Chincoteague I nn, 287 Va. 371, 384 (2014) (alterationin original) (quoting Lawlor- 6 - v. Commonwealth, 285 Va. 187, 237 (2013)) . In ascertaining suc h meaning, dictionary definitions and pertinent analysis in prior case law may be con sulted. See, e.g., Jones v. Commonwealth, 296 Va. 412, 415 (2018) (relying on the statutory language and a standard dictionary definition); Joseph v. Commonwealth, 64 Va. App. 332 , 338-39 (2015) (relying upon multiple legal and non-legal dictionary definitions and citing Bateman v. Commonwealth, 205 Va. 595, 599-600 (1964), in which the C ourt “rel[ied] exclusive ly” on a dictionary definition); Auer, 46 Va. App. at 645-47 (relying in part on definitions in prior case decisions). In determining the meaning of the phrase “a personal, private motor vehicle,” we look first to the definition of “privat e,” the closest modifier to t he noun “vehicle.” “Private” is defined in pertinent part as follows: 1a: intended for or restricted to the use of a particular pers on or group or class of persons: not fre ely available to the public < a [private] park> <a [private] party> 1b: belonging to or concerning an individual person, company, or interest <our [private] goods> <[ private] property> <a [private ] house> <[private] means> Private, Webster’s Third New Int ernational Dicti onary (2002); s ee City of Morgantown v. W. Va. Bd. of Regents, 354 S.E.2d 616, 618-19 (W. Va. 1987). The appellant agrees with the first of these definitions, quoti ng Merriam-Webster’s College Dictionary (11th ed. 2005) , to assert that “private” me ans “intended for or restricted to the use of a particular pers on, group, or class.” However, he further argues that “personal” is

“ [s]imilarly ” defined by that dictionary as “‘of, relating to, or affecting a particular person.’” (Emphasis added). He contends t hat both words mean merely that the statutory exemption applies “to vehicles driven by indi viduals for their own travel purposes, as opposed to forms of public transportation.” Accordi ngly, the appellant asserts tha t the statutory exemption does not apply to “forms of public trans portation . . . like city buses” but includes a ny “car, pickup truck,- 7 - van, or other type of motor vehi cle” being driven by an individ ual “for [his] own purposes.” The critical piece of his argument i s his claim that the exemption applies without regard to whether the individual operating the vehi cle owns it or is in lawful po ssession of it. The appellant’s analysis, how ever, by virtually equating the m eaning of “personal” with “private,” does not take into c onsideration the p rinciple that “[w]ords in a statute should be interpreted, if possible, to avoi d rendering [other] words supe rfluous.” See Cook, 268 Va. at 114. “[T]he legislature chooses s tatutory language with care, and ‘[w]hen the General Assembly uses two different terms, [we mu st] presume[] the terms . . . m ean two different things.’” Spratley v. Commonwealth, 69 Va. App. 314, 319-20 (2018) (quoti ng Brown v. Commonwealth, 284 Va. 538, 545 (2012)). In order to gi ve this important prin ciple full effect, the word “personal” in the phrase “a person al, private motor vehicle” mu st mean something different from the word “private.” These are common words that should be read in light of their common meanings. A dictionary definition of the wo rd “personal” that goes beyond the mere equivalent of “private” means “exclusively for a given individual,” as in “a [personal] letter.” Webster’s Third New International Dictionary, s upra. Additionally, Virginia la w defines “personal property” in part as that which is “subj ect to ownership.” See Henry v. Com monwealth, 63 Va. App. 30, 43 (2014) (quoting Property, Black ’s Law Dictionary (9th ed. 2009) (“personal property” subheading)). These definitions s upport the determination that the legislature did not intend to permit one to lawfully secure a d angerous firearm in a vehicle subject to personal ownership without consideration of who the ow ner or authorized user of th at vehicle is. Consequently, we conclude that the General Asse mbly, by using the adjective “per sonal,” meant at the very least to require that the vehicle in whi ch one secures a firearm, in add ition to being a “private” or non-public one, must also be one t hat the person claiming the e xemption lawfully possesses or- 8 - occupies. 1 See Braddock v. State, 194 S.E.2d 317, 320 (Ga. Ct. App. 1972 ) (holding that where a truck’s owner and his employee were riding together in the ve hicle, the employee “could not reasonably think of [the truck’ s glove compartment] as a personal, private place” in which he had a reasonable expectation of privacy (emphasis added)); Vill anova v. Innovative Investigations, Inc., 21 A .3d 650, 652 (N.J. Super. Ct. App. Di v. 2011) (noting the trial judge’s observation that “it is standard pr actice for law enforcement o fficers, while engaged in police activities, to avoid use of their personal private vehicles or to display any other personal identifiers” (emphasis added )); cf. Byrd v. United States, 138 S. Ct. 1518, 1529 (2018) (holding that “[a] car thief would not ha ve a reasonable expectation of privacy in a stolen car” regardless of “the degree of possession and control”). We need not decide whether one who is merely an authorized use r of a vehicle qualifies for the exemption. Cf. Morri s v. City of Va. Beach, 58 Va. App . 173, 180 (2011) (applying “best and narrowest ground” principles to hold that where one legal t heory legitimized a warrantless search, the Court would not cons ider whether a second legal the ory might also do so (quoting Armstead v. Commonwealt h, 56 Va. App. 569, 576 (2010))). Here, the appellant was not an authorized user under the facts of this case. To the contrary, by entering a plea of guilty to receiving stolen property, the appe llant admitted that he knew the pickup truck was stolen. See

1 The Virginia case decisions cit ed by the appellant, which empl oy the adjectives “personal” and “private” joint ly to modify a noun referencing avehicle, use the terms in wholly different contexts. See Carlton v. Boudar, 118 Va. 521, 525 (1 916) (in analyzing whether a taxi company was a common carrier for purposes of tort liability, no ting that “[a]n automobile may be used as a common carrier, a private carrier, or a personal p rivate conveyance” without discussing this third term (quoting Xenophon P. Huddy, The Law of Automobiles 38 (2d ed. 1909))); Thorne v. Va. Emp’t Comm’n, 5 Va. Cir. 441, 443 (1972) (in considering whether a taxi driver was an employee or indepe ndent contract or, noting that “ the only fringe benefit available to [the] driver [of a t axi for Thorne’s company] is the use of [the vehicle] for personal private transportation on occasion,” leaving open the inference that th e term implies at least authorized use); see also McGinnis v. McGinnis, 69 Va. App. 572, 580 (2018 ) (noting that circuit court decisions are not binding on the C ourt of Appeals). Consequent ly, these decisions are not instructive.- 9 - Code § 18.2-108(A). Accordingly, under the plain meaning of “p ersonal” as used in the statutory exemption, the stolen v ehicle was certainly not one i ntended “exclusively” for the appellant or one subject to his authorized use.
III. CONCLUSION We hold that the exemption i n Code § 18.2-308(C)(8) did not ap ply because the appellant knew that the truck in which he s ecured the firearm was stolen and, thus, it was not “a personal, private motor vehicle” within the meaning of the exemption. Co nsequently, we affirm the appellant’s conviction f or violating Code § 18.2-287.4. Affirmed.