Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Lacy, S.J.
LURIA NICOLE GREENE
v. Record No. 081151 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA February 27, 2009
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we consider whether a person who fails to
answer a subpoena issued by the Virginia Department of
Charitable Gaming (the Department) violates a provision of
Article 1.1:1 of Title 18.2, the Charitable Gaming statutes, and
therefore is guilty of a Class 1 misdemeanor pursuant to Code
§ 18.2-340.37.
FACTS
In 2005, the Department was investigating the Phoebus
Athletic League. In conjunction with the investigation, the
Department issued a subpoena to Luria Nicole Greene, the League
treasurer. The subpoena required Greene to appear as a witness
and present certain documents to a Department agent on January
19, 2006 at the Department’s office in Norfolk. Greene did not
appear at the Department’s office as directed in the subpoena.
Greene was indicted for willfully failing to comply with
the Department’s subpoena. At trial, Greene moved to strike the
Commonwealth’s evidence arguing that disobeying the Department’s
subpoena was not a criminal offense. The trial court denied
Greene’s motion, found Greene guilty, sentenced her to a term of
60 days in the Norfolk city jail, and imposed a $500 fine. The
trial court suspended the 60-day jail term and placed Greene on
unsupervised probation for a period of two years.
Greene appealed her conviction to the Court of Appeals of
Virginia arguing, inter alia, that no statute makes the failure
to answer the Department’s subpoena a crime. The Court of
Appeals affirmed Greene’s conviction in an unpublished opinion.
Greene v. Commonwealth, Record No. 3012-06-1 (April 22, 2008).
Greene filed a timely appeal to this Court, raising the same
issue.
DISCUSSION
This appeal involves the construction of a penal statute.
The applicable principles of statutory construction which we
apply in such a case are well established. A penal statute must
be strictly construed and may not be extended by implication.
Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414
(2008) (citations omitted). Courts must limit the application
of a penal statute to cases falling clearly within the scope of
the statute and may not add words to the statute. Farrakhan v.
Commonwealth, 273 Va. 177, 181, 639 S.E.2d 227, 229 (2007). The
construction of a statute is a matter of law which we review de
novo. Id. at 180, 639 S.E.2d at 229.
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Greene was indicted based on Code §§ 18.2-340.18 and 18.2-
340.37. Code § 18.2-340.18(4) gives the Department the
authority to issue subpoenas for witnesses and for the
production of documents. Code § 18.2-340.37(A) states that
“[a]ny person who violates the provisions of this article” is
guilty of a Class 1 misdemeanor. The “article” referenced in
Code § 18.2-340.37 is Article 1.1:1, Chapter 8 of Title 18.2,
styled “Charitable Gaming.” The unambiguous terms of the
statute provide that a person is guilty of a Class 1 misdemeanor
only if she violates a provision of Article 1.1:1.
Code § 18.2-340.18 is contained in Article 1.1:1, but while
the section authorizes the Department to issue subpoenas, it
does not state that the failure to comply with the subpoena is a
statutory violation. No other provision in Article 1.1:1
imposes a penalty for non-compliance with a Department-issued
subpoena or makes such non-compliance a violation of a provision
of that Article. * Compare Code § 3.2-3218 (failure to comply
with subpoena issued by Milk Commission is Class 2 misdemeanor),
*
Although no penalty for non-compliance with a department-
issued subpoena is contained in Article 1.1:1, such non-
compliance does not escape penalty. Code § 2.2-4022, of the
Administrative Procedure Act, provides that “unless the basic
law under which the agency is operating provides some other
recourse, enforcement, or penalty, the agency may procure an
order of enforcement [of the subpoena] from [the circuit]
court.” A court may summarily find a person who fails to comply
with a court-issued subpoena guilty of contempt. Code § 18.2-
456(5).
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Code § 3.2-4726 (failure to comply with subpoena issued by
Commissioner of Agriculture and Consumer Services guilty of
contempt and certified to appropriate court for punishment), and
Code § 4.1-319 (failure to comply with subpoena issued by the
Virginia Alcoholic Beverage Control Board guilty of Class 1
misdemeanor).
As stated above, penal statutes must be strictly construed
and may not be extended by implication. Therefore, we hold that
because non-compliance with a subpoena issued by the Department
is not identified as a violation of Article 1.1:1 of the
Charitable Gaming Statutes, Greene could not be guilty of a
Class 1 misdemeanor pursuant to Code § 18.2-340.37(A) for
failure to comply with the subpoena issued by the Department.
Accordingly, we will reverse the judgment of the Court of
Appeals affirming Greene’s conviction, vacate that conviction,
and dismiss the indictment against her.
Reversed, vacated, and dismissed.
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