COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys
Argued at Alexandria, Virginia
KAREN LYNN ALGER
OPINION BY
v. Record No. 0690-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 18, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
John J. McGrath, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Karen Lynn Alger (appellant) appeals from her bench trial
conviction for possession of a firearm after having been convicted
of a felony in violation of Code § 18.2-308.2. On appeal, she
contends that the trial court erred in its finding that Code
§ 18.2-308.2(A) prohibited her from possessing a shotgun in her
own home. Finding no error, we affirm.
I.
The essential facts are undisputed. Appellant is a
convicted felon. 1 On September 7, 2001 deputies from the Page
County Sheriff's Office received a report of a domestic
1
Appellant was convicted of grand larceny, forgery and
uttering in 1996.
disturbance and went to appellant's home. When the deputies
arrived, they found appellant, her husband, and her adult
daughter in the house. The husband's shirt was bloody from a
stab wound inflicted by appellant. 2 The deputies also found a
hole in the wall consistent with a shotgun blast and asked if
there were any weapons in the home. Appellant's husband gave
them the shotgun. Both appellant's husband and daughter
testified that she discharged the shotgun in the house while the
husband was in the bathroom cleaning his stab wound. Appellant
does not contest she fired the weapon and conceded she owned the
shotgun jointly with her husband. The sole question presented
on appeal is whether the version of Code § 18.2-308.2(A) in
effect at the time prohibited appellant from possessing the
shotgun in her home.
II.
At the time of the offense, Code § 18.2-308.2(A) 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.
2
Appellant was convicted of assault and battery for the
stabbing in a separate proceeding not at issue here.
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Code § 18.2-308.2(A) (as amended 2001).3 Appellant contends that
the exception for possession inside the home or the curtilage in
the 2001 amendment applied to all firearms not just those
enumerated in clause (b), stun weapons and tasers. Appellant
relies on Humphrey v. Commonwealth, 37 Va. App. 36, 553 S.E.2d 546
(2001), in urging us to adopt her interpretation of the statute.
This reliance, however, is misplaced. In Humphrey, we had to
determine whether Code § 18.2-308.2 eliminated the common law
defense of necessity to one previously convicted of a felony. We
held that "the common law defense of necessity remains available,
upon an appropriate factual predicate, as a defense to a charge
of possessing a firearm after having been convicted of a felony
under Code § 18.2-308.2." Humphrey, 37 Va. App. at 40, 553
S.E.2d at 548. The question of whether the statute applied only
to stun weapons and tasers or to all firearms was not before us
3
The General Assembly amended Code § 18.2-308.2 effective
April 1, 2002. Pursuant to that amendment, the statute now
provides:
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 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.
Code § 18.2-308.2(A) (as amended 2002).
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in Humphrey. Thus, the footnote in Humphrey upon which
appellant relies was dicta and is not dispositive in any event.
"When analyzing a statute, we must assume that the
legislature chose, with care, the words it used when it enacted
the relevant statute, and we are bound by those words as we
interpret the statute." Toliver v. Commonwealth, 38 Va. App.
27, 32, 561 S.E.2d 743, 746 (2002) (internal quotations
omitted).
Under basic rules of statutory construction,
we examine a statute in its entirety, rather
than by isolating particular words or
phrases. When the language in a statute is
clear and unambiguous, we are bound by the
plain meaning of that language. We must
determine the General Assembly's intent from
the words appearing in the statute, unless a
literal construction of the statute would
yield an absurd result.
Cummings v. Fulghum, 261 Va. 73, 77, 540 S.E.2d 494, 496 (2001)
(emphasis added) (internal citations omitted). Furthermore,
"when statutory construction is required, we construe a statute
to promote the end for which it was enacted, if such an
interpretation can reasonably be made from the language used."
Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305,
307 (1995). "Thus, a statute should be read to give reasonable
effect to the words used and to promote the ability of the
enactment to remedy the mischief at which it is directed." Id.
Applying these principles to the 2001 amendment to Code
§ 18.2-308.2(A), we conclude that the interpretation appellant
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urges upon us would yield an absurd result and we, therefore,
reject it. The "mischief" at which § 18.2-308.2(A) is directed
is the possession of firearms by convicted felons in an attempt to
prevent indiscriminate use of dangerous weapons by one previously
convicted of a serious crime. See, e.g., Armstrong v.
Commonwealth, 263 Va. 573, 579, 562 S.E.2d 139, 142 (2002) ("Code
§ 18.2-308.2 expressed a legislative intent of keeping firearms
out of the hands of convicted felons."). Appellant's
interpretation would vitiate the purpose of limiting a convicted
felon's use of a deadly weapon. The statute, which proscribes
possession of a firearm by a convicted felon and includes in its
terms a mandatory penalty for a violation, is clearly indicative
of a legislative intent to limit the availability of firearms to
this category of law violator. It would be absurd to create an
exception that would allow a convicted felon to use a deadly
weapon in his home. As the trial court noted, if the legislature
"meant to change something as absolutely fundamental as felons
being able to possess firearms in their home or in the yard . . .
that would have been made manifestly clear." We agree with this
analysis. Had the legislature intended to allow convicted felons
to possess firearms in their homes, it would have said so. See
Hughes v. Commonwealth, 39 Va. App. 448, 573 S.E.2d 324 (2002);
see also Barnes v. Commonwealth, 33 Va. App. 619, 628, 535
S.E.2d 706, 710 (2000) ("If the legislature had intended to
restrict the predicate abduction offense to a specific statute,
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it would have done so."); Reynolds v. Commonwealth, 30 Va. App.
153, 160, 515 S.E.2d 808, 811-12 (1999) ("If the legislature had
intended that operators undergo a forty-hour training program
for each individual type of breath test equipment, then it would
have said so in the statute.").
"'Where a particular construction of a statute will result
in an absurdity, some other reasonable construction which will
not produce the absurdity will be found.'" Mayhew, 20 Va. App.
at 489, 458 S.E.2d at 307 (quoting Miller v. Commonwealth, 180
Va. 36, 41, 21 S.E.2d 721, 723 (1942)). Additionally, "[w]hen
new provisions are added to existing legislation by amendment,
we presume that, in making such amendment, the legislature acted
with full knowledge of and in reference to the existing law upon
the same subject and the construction placed upon it by the
courts." Burke v. Commonwealth, 29 Va. App. 183, 188, 510
S.E.2d 743, 745-46 (1999) (internal quotation omitted). The
2001 amendments to the statute expanded the class of weapons
that a felon may not possess to include stun weapons and tasers
within its proscription. The amendment then created an
exception to the general prohibition of possession of a "stun
weapon or taser as defined in § 18.2-308.1" by allowing
possession of those weapons in the home. Code § 18.2-308.2(A).
Clearly the legislative intent is that the exception apply only
to stun weapons and tasers, firearms that are limited in their
ability to injure. Accordingly, we adopt this construction and
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hold that the 2001 amendments did not permit convicted felons to
possess firearms, such as the shotgun at issue here, in their
residence or the curtilage thereof. This interpretation is
borne out by the legislature's 2002 amendment to the statute,
which makes clear that the exception it adopted applies only to
stun weapons and tasers. Finding no error in the trial court's
interpretation or application of the statute in this case, we
affirm.
Affirmed.
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