COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
DANTE E. FRIAS
OPINION BY
v. Record No. 2567-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge
Michael A. Robusto (Slipow, Robusto & Kellam,
P.C., on briefs), for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Dante E. Frias (appellant) was convicted in a bench trial
of possession of a firearm on school property in violation of
Code § 18.2-308.1. He contends the trial court erred in failing
to find him to be a "conservator of the peace" and, therefore,
exempt from the charge of possession of a firearm on school
property. For the following reasons, we affirm.
I. BACKGROUND
In November 1997, appellant was a properly licensed and
"registered armed security officer" and also possessed a valid
concealed weapons permit. He was employed by STI Security
Company as an armed security guard and was authorized to make
arrests in the Chesapeake housing developments.
On November 17, 1997, appellant picked up his girlfriend at
Salem High School. The school's assistant principal saw
appellant in front of the school and observed him carrying a gun
in his waistband. At that time, he told appellant that he was
not permitted to carry the gun on school property. The
following day, appellant left his security job and again
returned to Salem High School to pick up his girlfriend. The
assistant principal recognized appellant from the previous day
and told Officer G. Anderson (Anderson) about the earlier gun
incident. Anderson stopped appellant in his car before he left
the school grounds and saw that appellant was wearing an empty
gun holster. Anderson asked appellant where the gun was
located. Appellant initially responded that the gun was in the
trunk of his car, but later retrieved the gun from under the
driver's seat. Anderson unloaded the gun and placed appellant
under arrest.
Appellant argued to the trial court that he was a
"conservator of the peace" and, therefore, exempt from the
requirements of Code § 18.2-308.1. The trial judge determined
that he was not a "conservator of the peace" and found appellant
guilty, stating: "Obviously you were there with the gun on
school property."
II. "CONSERVATOR OF THE PEACE"
Appellant contends the trial court erred in determining
that he was not a "conservator of the peace" in transit from his
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duties 1 and, therefore, exempt from the statute. Appellant
argues that the list defining who is a conservator of the peace
set forth in Code § 19.2-12 is not an exclusive list. He
contends that a broader definition was intended and that under
the broader definition a "registered armed security guard" is a
"conservator of the peace." 2 Appellant does not allege on appeal
that he followed the necessary requirements to be a "conservator
of the peace" pursuant to Code § 19.2-13. 3
1
Although the record indicates a dispute regarding whether
appellant was "in transit from his duties," this issue was not
raised on appeal. Thus the only issue is whether he was in fact
a "conservator of the peace."
2
The Commonwealth contends that appellant failed to raise
this argument in the trial court because appellant relied upon
only the section of the Code concerning "special conservators of
the peace," Code § 19.2-13. However, the record indicates that
the issue was properly preserved.
3
In pertinent part, Code § 19.2-13 provides for the
appointment of "special conservators of the peace":
A. Upon the application of any
corporation authorized to do business in the
Commonwealth or the owner, proprietor or
authorized custodian of any place within the
Commonwealth and the showing of a necessity
for the security of property or the peace,
the circuit court of any county or city, in
its discretion, may appoint one or more
special conservators of the peace who shall
serve as such for such length of time as the
court may designate, but not exceeding four
years under any one appointment. The order
of appointment may provide that a special
conservator of the peace shall have all the
powers, functions, duties, responsibilities
and authority of any other conservator of
the peace within such geographical
limitations as the court may deem
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Possession of a firearm by any person upon "any public,
private or parochial elementary, middle or high school"
buildings or grounds is a Class 6 felony. Code § 18.2-308.1.
Code § 18.2-308.1 also provides that the "exemptions set out in
Code § 18.2-308 shall apply" to Code § 18.2-308.1.
Section 18.2-308(C) provides that "conservators of the
peace" are exempt from the prohibition against carrying a gun on
school grounds "while in the discharge of their official duties,
or while in transit to or from such duties." Code § 19.2-12
defines "conservators of the peace" to include:
Every judge throughout the Commonwealth and
every magistrate within the geographical
area for which he is appointed or elected,
appropriate, whenever such special
conservator of the peace is engaged in the
performance of his duties as such. The
order may also provide that the special
conservator of the peace is a
"law-enforcement officer" for the purposes
of §§ 37.1-67.01 and 37.1-67.1.
* * * * * * *
B. The court may limit or prohibit the
carrying of weapons by any special
conservator of the peace initially appointed
on or after July 1, 1996, while the
appointee is within the scope of his
employment as such. If the order of
appointment does not prohibit the carrying
of weapons, the court may require that the
appointee meet the minimum entry training
requirements established by the Department
of Criminal Justice Service under § 9-170
for law-enforcement officers within twelve
months of his appointment.
(Emphasis added).
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shall be a conservator of the peace. In
addition, every commissioner in chancery,
while sitting as such commissioner, any
special agent or law-enforcement officer of
the United States Department of Justice,
National Marine Fisheries Service of the
United States Department of Commerce,
Department of Treasury, Department of
Agriculture, Department of State, and
Department of Interior, any inspector,
law-enforcement official or police personnel
of the United States Postal Inspection
Service and any United States marshal or
deputy United States marshal whose duties
involve the enforcement of the criminal laws
of the United States, any officer of the
Virginia Marine Patrol, any criminal
investigator of the United States Department
of Labor, and any special agent of the
United States Naval Criminal Investigative
Services shall be a conservator of the
peace, while engaged in the performance of
their official duties.
Appellant points out that Code § 18.2-308(C)(4) attaches
limitations to certain "conservators of the peace" in exempting
them from the prohibition. Code § 18.2-308(C)(4) provides that
"the following conservators of the peace shall not be permitted
to carry a concealed handgun without obtaining a permit as
provided in subsection D hereof: (a) notaries public;
(b) registrars; (c) drivers, operators or other persons in
charge of any motor vehicle carrier of passengers for hire; or
(d) commissioners in chancery." Appellant argues that the
definition of "conservator of the peace" must be broader than
explicitly stated in Code § 19.2-12 because Code § 18.2-308(C)
identifies classifications of occupations as "conservators of
the peace" that are not contained in Code § 19.2-12. He
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contends that, as a "registered armed security guard," he is
included in that broader definition.
Where the language of a statute is free from ambiguity, its
plain meaning will control. See Portsmouth v. Chesapeake, 205
Va. 259, 269, 136 S.E.2d 817, 825 (1969). "The plain, obvious,
and rational meaning of a statute is always preferred to any
curious, narrow or strained construction." Gilliam v.
Commonwealth, 21 Va. App. 519, 522-23, 465 S.E.2d 592, 594
(1996) (quoting Branch v. Commonwealth, 14 Va. App. 836, 839,
419 S.E.2d 422, 424 (1992)). We will not single out a
particular term, phrase or clause to construe a statute; we will
construe the words and terms at issue in the context of the
other language used in the statute. See City of Virginia Beach
v. Board of Supervisors, 246 Va. 233, 236-37, 435 S.E.2d 382,
384 (1993).
"If the several provisions of a statute suggest a potential
conflict or inconsistency, we construe those provisions so as to
reconcile them and to give full effect to the expressed
legislative intent." Mejia v. Commonwealth, 23 Va. App. 173,
176-77, 474 S.E.2d 866, 868 (1996) (en banc). "[A] statute
should never be construed so that it leads to absurd results."
Branch, 14 Va. App. at 839, 419 S.E.2d at 424 (citations
omitted). 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."
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City of Virginia Beach v. ESG Enters., Inc., 243 Va. 149, 153,
413 S.E.2d 642, 644 (1992) (citations omitted). We are not
permitted to rewrite statutes. See Frazier v. Commonwealth,
Dep't. of Social Servs., 27 Va. App. 131, 135, 497 S.E.2d 879,
881 (1998); Barr v. Town & Country Properties, Inc., 240 Va.
292, 295, 396 S.E.2d 672, 674 (1990).
We assume, without deciding, that Code § 19.2-12 does not
contain the exclusive listing of occupations included within
"conservator of the peace." See, e.g., Code § 5.1-21 and Code
§ 24.2-114(5). We note, however, that appellant is licensed and
registered under Code § 9-183.8, which provides that
"[c]ompliance with the provisions of this article shall not
authorize any person to . . . exercise any powers of a
conservator of the peace." Under the same code section,
appellant is authorized, under limited circumstances, to perform
some actions that conservators of the peace are also authorized
to perform. This statutory provision unambiguously declares
that "registered armed security guards" are not included in any
possible definition of "conservator of the peace." To hold
otherwise would require us to ignore the clear, unambiguous
language in the statute and assume the legislature did not in
fact mean what it said. The legislature expressly stated that
compliance with the licensing provisions does not grant a person
the status or powers of a "conservator of the peace." Appellant
has not alleged that he did anything, other than simply being
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licensed, to become a conservator of the peace. Thus, to
interpret Code § 19.2-12 in the manner appellant urges would
violate these principles.
Furthermore, appellant contends that a common law
definition of "conservator of the peace" exists which
encompasses "registered armed security officers." Appellant
cites no authority for this assertion. We find none. In
construing statutes, the statutory definition must prevail over
the common law definition. See Life Ins. & Cas. Co. of
Tennessee v. Unemployment Compensation Comm'n of Virginia, 178
Va. 46, 57, 16 S.E.2d 357, 361 (1941). In the instant case,
Code §§ 18.2-308.1 and 18.2-308 exempt "conservators of the
peace" from acts made criminal by statute, not common law. Code
§ 19.2-12 defines "conservators of the peace." In interpreting
a criminal statute, we are bound by the statutory definition of
"conservator of the peace" adopted by the legislature. We are
not permitted to ignore or rewrite the statute in favor of a
common law definition. See generally Barr, 240 Va. at 295, 396
S.E.2d at 674; see also Frazier, 27 Va. App. at 135, 497 S.E.2d
at 881.
Furthermore, appellant is a "registered armed security
officer." "Registered armed security officers" did not exist at
common law; they are solely a creation of statute. As such,
these statutory creations cannot be included within a common law
definition of "conservator of the peace." Indeed, Code
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§ 9-183.8 resolves any doubt, providing that "[c]ompliance with
the provisions of this article shall not authorize any person to
. . . exercise any powers of a conservator of the peace."
(Emphasis added). Thus, even if a common law definition of
"conservator of the peace" exists, it would not include
appellant in the instant case.
For the foregoing reasons, we affirm appellant's conviction
for possession of a firearm on school grounds.
Affirmed.
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