PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Carrico, S.J.
KARYN LYNN ALGER
OPINION BY
v. Record No. 030848 JUSTICE G. STEVEN AGEE
January 16, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Karyn Lynn Alger ("Alger") was convicted in the Circuit
Court of Page County for unlawfully possessing a firearm after
having been convicted of a felony in violation of Code § 18.2-
308.2. She was sentenced to five years in prison with three
years suspended.
On appeal, Alger does not dispute that she was a convicted
felon or that she possessed a firearm in her home on the date of
the offense. Instead, Alger contends, as she did in the trial
court and the Court of Appeals, that Code § 18.2-308.2, as
amended and reenacted by the General Assembly, permitted her to
possess a firearm within her residence. The Commonwealth
responds that Code § 18.2-308.2 allowed Alger to possess a stun
weapon or taser in her residence, but not a firearm.
The issue before the Court is whether, at the time of the
offense, Code § 18.2-308.2 permitted Alger to possess a firearm
in her home. For the reasons that follow, we answer that
inquiry in the negative and will therefore affirm Alger's
conviction.
I.
In the 2001 session of the General Assembly, Code § 18.2-
308.2 was amended by adding a subclause (b) to the first
sentence of subsection A. As amended in 2001 and in force on
the date of the offense, the statute provided in pertinent part:
It shall be unlawful for (i) any person who has
been convicted of a felony . . . to knowingly and
intentionally possess or transport any (a)
firearm or (b) stun weapon or taser as defined in
§ 18.2-308.1 except in such person's residence or
the curtilage thereof or to knowingly and
intentionally carry about his person, hidden from
common observation, any weapon described in
subsection A of § 18.2-308.
Code § 18.2-308.2(A) (as amended 2001) (emphasis on amended
language). 1
1
For reasons unknown, when the 2001 version of the Code of
Virginia was printed by the contract publisher, Michie Law
Publishers, a comma appeared in Code § 18.2-308.2(A) between the
first reference to "§ 18.2-308.1" and the word "except." The
publisher subsequently issued an errata sheet which corrected
the error by removing the erroneous comma and showing the
statute in conformity with the Acts of Assembly. See Acts,
2001, cc. 811, 854 (showing enactment by the General Assembly
with no comma). However, on September 7, 2001, the date of the
charged offense, the publisher's version of the cumulative
supplement to the Code of Virginia reflected the erroneous comma
in the text of Code § 18.2-308.2(A).
Alger does not contend on appeal that the uncorrected
cumulative supplement pamphlet for 2001, erroneously published
with a comma before the "except" clause, has any legal efficacy.
We consider only the language actually adopted by the General
Assembly, which did not have a comma before the "except" clause.
The General Assembly subsequently amended Code § 18.2-308.2
in 2002 and 2003. The most recent version of Code § 18.2-
308.2(A) states in pertinent part that:
2
It is uncontested that on September 7, 2001, Alger was a
convicted felon and intentionally possessed a shotgun inside her
home. The trial court determined that the clause "except in
such person's residence or the curtilage thereof" (the "except"
clause) only modified "stun weapon or taser as defined by
§ 18.2-308.1," and not "firearm." Accordingly, the trial court
rejected Alger's reading of Code § 18.2-308.2(A) that the
"except" clause modified "firearm" so as to permit a convicted
felon to possess a firearm in her residence. Alger was then
convicted of the offense charged.
On review, the Court of Appeals, citing Cummings v.
Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001), reviewed
the statute "in its entirety, rather than by isolating
particular words or phrases." Alger v. Commonwealth, 40 Va.
App. 89, 93, 578 S.E.2d 51, 53 (2003). The Court of Appeals
rejected Alger's interpretation of the statute finding that it
would "yield an absurd result." Id. We granted Alger this
appeal.
It shall be unlawful for (i) any person who has been
convicted of a felony . . . to knowingly and
intentionally possess or transport any firearm or stun
weapon or taser as defined by § 18.2-308.1 or to
knowingly and intentionally carry about his person,
hidden from common observation, any weapon described
in subsection A of § 18.2-308. However, such person
may possess in his residence or the curtilage thereof
a stun weapon or taser as defined by § 18.2-308.1.
3
II.
Alger argues that Code § 18.2-308.2 "appears on its face to
permit a convicted felon to possess firearms and stun
weapons/tasers, within her own residence." In support of this
interpretation of the statute, Alger asserts that conventions of
legal drafting require items tabulated in an enumeration to be
of the same class and that words preceding or following the
enumeration shall apply to each item in the series. Therefore,
in Alger's view, the "except" clause modifies both "(a) firearm
or (b) stun weapon or taser." Alternatively, Alger asserts that
Code § 18.2-308.2, as a penal statute, must be strictly
construed against the Commonwealth and in her favor to resolve
any ambiguity. Further, Alger argues the Court of Appeals
improperly considered the legislative history of the statute
without expressly finding the statute to be ambiguous.
The Commonwealth disagrees with Alger's interpretation of
the amended language of Code § 18.2-308.2(A) and argues the
"except" clause only modifies subclause (b) concerning stun
weapons and tasers.
Although our analysis differs from that of the Court of
Appeals, we reach the same result.
Code § 18.2-308.2(A) (as amended 2003); Acts, 2003 c. 110; Acts,
2002 c. 362.
4
III.
In reviewing the language of Code § 18.2-308.2, we adhere
to the familiar principle that
[u]nder basic rules of statutory construction, we
determine the General Assembly's intent from the words
contained in the statute. When the language of a
statute is unambiguous, courts are bound by the plain
meaning of that language and may not assign a
construction that amounts to holding that the General
Assembly did not mean what it actually has stated.
Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470
(2003) (citations omitted). Prior to the 2001 amendments to
Code § 18.2-308.2, it is clear the obvious intent of that
statute was to prohibit persons convicted of felonies from
possessing firearms. See e.g., Armstrong v. Commonwealth, 263
Va. 573, 583, 562 S.E.2d 139, 144 (2002) ("the legislative
intent of Code § 18.2-308.2 is to prohibit convicted felons from
possessing 'any firearm' "). The General Assembly added
language to Code § 18.2-308.2 in 2001 that expanded the
proscription against possessing firearms by a convicted felon to
include stun guns or tasers. See Acts, 2001 cc. 811 and 854.
Concurrently with the addition of this language, the General
Assembly also added the exemption for possession in the home or
surrounding curtilage. 2
2
We mention the legislative history of Code § 18.2-308.2
only to provide context to the amended language at issue here.
As it is not the basis of our interpretation of the statute we
need not consider Alger's argument in that regard.
5
While it is true that penal statutes must be strictly
construed against the Commonwealth in criminal cases, "we will
not apply 'an unreasonably restrictive interpretation of the
statute' that would subvert the legislative intent expressed
therein." Armstrong, 263 Va. at 581, 562 S.E.2d at 144. To
avoid an "unreasonably restrictive" interpretation of the
statute, we may employ established rules of statutory
construction. One such rule, sometimes referred to as the last
antecedent doctrine, is particularly applicable here and can be
summarized as follows:
Referential and qualifying words and phrases,
where no contrary intention appears, refer solely
to the last antecedent. The last antecedent is
'the last word, phrase, or clause that can be
made an antecedent without impairing the meaning
of the sentence.' Thus a proviso usually is
construed to apply to the provision or clause
immediately preceding it.
2A Norman J. Singer, Sutherland on Statutory Construction
§ 47.33 (6th rev. ed. 2000); see also Barnhart v. Thomas, ___
U.S. ___, ___, 124 S.Ct. 376, 380 (2003) (explaining and applying
"the grammatical 'rule of the last antecedent,' according to which
a limiting clause or phrase . . . should ordinarily be read as
modifying only the noun or phrase that it immediately follows
. . . ."); Nobelman v. American Savings Bank, 508 U.S. 324, 330
6
(1993) (noting that construction of a statute according to the
last antecedent rule is "quite sensible as a matter of grammar").
In the case at bar, the phrase "stun weapon or taser as
defined in § 18.2-308.1" is the last antecedent before the "except
clause." As such, "stun weapon or taser" is the referential and
qualifying phrase. Thus, according to the last antecedent rule of
construction, the "except" clause modifies only "stun weapon or
taser" and not "firearm." See e.g., Keene v. Travelers Indemnity
Company of Illinois, 73 F. Supp. 2d 638, 641 (W.D. Va. 1999)
(employing the last antecedent doctrine to interpret an insurance
contract); Sun Valley Foods Co. v. Ward, 596 N.W.2d 119, 123
(Mich. 1999) (employing last antecedent doctrine to interpret a
statute). The wording of the amendment to the statute further
reinforces this reading because the General Assembly
differentiated between "firearms" and "stun weapons or taser" by
inserting the "a" and "b" designations before those terms.
Alger argues that "[w]hen items are tabulated in an
enumeration, the conventions of legal drafting provide that the
enumerated items must all be of the same class and that the words
preceding and following the enumeration shall apply to each item
in the series." Inspection of the source material Alger cites for
this proposition, however, makes clear that the statutory language
of Code § 18.2-308.2 is not what is contemplated as items
"tabulated in an enumeration." See generally Reed Dickerson, The
7
Fundamentals of Legal Drafting § 6.3 (1965); see e.g., Code
§ 18.2-308.7 (items tabulated in an enumeration).3
Moreover, had the General Assembly intended to permit
convicted felons to possess a firearm in their residence it would
have done so. We "assume that the legislature chose, with care,
the words it used when it enacted the relevant statute." Barr v.
Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672,
674 (1990).
For these reasons it is evident that Code § 18.2-308.2 did
not permit Alger, as a convicted felon, to possess a firearm
3
Reed Dickerson, The Fundamentals of Legal Drafting § 6.3
at 86 (1965):
The following provision exemplifies the sentence form
of tabulation:
Any person punishable under this chapter who:
(1) commits an offense punishable under
this chapter, or aids, abets,
counsels, commands, or procures its
commission; or
(2) causes an act to be done that if
directly performed by him would be
punishable under this chapter;
is a principal.
The following provision exemplifies the list form of
tabulation:
The Trustee may buy any of the following:
(1) United States Government bonds.
(2) State bonds.
(3) Municipal bonds.
(4) Preferred stock.
(5) Common stock listed on the New York
Stock Exchange.
8
within her home, the curtilage thereof or anywhere else. We will
therefore affirm the judgment of the Court of Appeals.
Affirmed.
9