COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and Athey
UNPUBLISHED
Argued at Norfolk, Virginia
DORAIN JEROD MYERS
MEMORANDUM OPINION* BY
v. Record No. 1978-18-1 JUDGE RANDOLPH A. BEALES
DECEMBER 27, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Robert H. Sandwich, Jr., Judge
Sean E. Harris, Senior Trial Attorney (Office of Public Defender, on
brief), for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
At the conclusion of a bench trial, appellant Dorain Jerod Myers was found guilty of
carrying a concealed weapon, second offense, in violation of Code § 18.2-308. On appeal, he
challenges the sufficiency of the evidence to sustain his conviction on two grounds. First, he argues
that the trial court erred in finding that the exception in Code § 18.2-308(C)(8) for carrying a
handgun in a secured container or compartment in a vehicle did not apply. Second, he argues that
the evidence failed to show that the firearm was “about his person.”
I. BACKGROUND
In accordance with established principles of appellate review, we view the “evidence in the
light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial
court.” Riner v. Commonwealth, 268 Va. 296, 330 (2004). “We also accord the Commonwealth
the benefit of all inferences fairly deducible from the evidence.” Id. at 303.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On the evening of November 29 into November 30, 2017, Officer Ashley Shockley and
Officer Hunter Triplett of the Suffolk Police Department were driving near an apartment building
when they noticed a Ford Expedition that was parked near the building. Officer Shockley testified
that, when she first saw the vehicle, she noticed occupants inside. After she and Triplett drove
around the area and returned, she observed that the occupants were still sitting inside the vehicle.
Both officers had responded the previous day to a report of a breaking and entering in that
apartment complex, so they proceeded to further investigate.
The officers parked their vehicle a short distance behind the parked Ford Expedition and
approached it on foot. Both officers testified that they smelled an odor of marijuana coming from
the vehicle. The officers encountered three individuals in the vehicle – Myers in the driver’s seat,
Jerry Warren in the front passenger seat, and Kaylah Staton in the back seat. Officer Triplett asked
all the occupants to exit the vehicle, and Myers at first did not comply. Eventually, he exited the
vehicle. The officers searched the vehicle and found a blue backpack on the floorboard of the front
passenger seat. Officer Shockley testified that the backpack was within arm’s reach of where the
driver was seated. The officers unzipped the backpack and found inside two BB guns as well as a
.40 caliber Taurus handgun. Officer Shockley testified that she found a wallet in the vehicle’s
center console, and the wallet contained an identification card belonging to Myers as well as a .40
caliber cartridge that matched the cartridges found in the handgun.
Officer Shockley asked the three individuals which of them owned the blue backpack. At
first, none of them claimed the backpack. Officer Shockley then stated that there was a concealed
weapon in the backpack and asked who should be charged with carrying it. Myers eventually
responded that the backpack was his. Officer Shockley also testified that Myers later stated
“multiple times that he was going to get his gun back once we had taken it.” Officer Triplett
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testified that, after Myers had been Mirandized, Officer Triplett asked him if the gun was in the
backpack before the police arrived, “and Mr. Myers said naw.”
Myers was indicted for carrying a weapon concealed from common observation, second
offense, in violation of Code § 18.2-308 and tried in a bench trial. After the Commonwealth
presented its case, Myers presented evidence in his defense. Warren testified for the defense that,
on the evening of November 29 into November 30, 2017, Myers picked up him and his girlfriend,
Staton, from Staton’s place of employment. Warren stated that he first came out to meet Myers and
talked with Myers for a few moments before going into a store. Warren testified that, when he first
came to the vehicle, he did not notice any blue backpack. He further testified that, when he came
back out of the store, he sat in the front passenger seat of the vehicle and there was a blue backpack
at his feet. Warren testified that the blue backpack was Staton’s and that he had previously seen her
with the backpack. Warren also testified that he thought there were BB guns in the backpack but
was not aware there was a firearm in the backpack.
Myers then testified that he “never even knew a blue bookbag was in” the vehicle until the
police asked him about it. He testified that he “didn’t want [Warren and Staton] to have to deal with
gun charges that they don’t know nothing about, so I said yes, the gun is mine.” He also testified
that, after he took responsibility for the gun, Staton admitted to him that the gun was hers.
At the conclusion of the evidence, Myers made a motion to strike, which the trial court
denied. The trial judge made several findings of fact in pronouncing Myers’s guilt. The trial judge
stated he did not believe Myers’s testimony or Warren’s testimony. The trial judge also stated, “It’s
clear from his -- what he told the officers that the bag was his, and that the firearm inside of [the]
bag is his.” The trial judge also found that the gun was within an arm’s reach of Myers, and thus
about his person. Addressing the exception in Code § 18.2-308(C)(8), the trial judge stated, “I find
that under these circumstances of this case, that a zipped compartment on a backpack would not be
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well-fastened,” and thus the exception did not apply. The trial judge ultimately found Myers guilty
of carrying a concealed weapon, second offense.
II. ANALYSIS
When considering the sufficiency of the evidence on appeal, “a reviewing court does not
‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663 (2003) (quoting Jackson v. Virginia,
443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light most favorable to the
Commonwealth, as we must since it was the prevailing party in the trial court,” Riner, 268 Va. at
330, “[w]e must instead ask whether ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt,’” Crowder, 41 Va. App. at 663 (quoting Kelly
v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)). “This familiar standard gives full
play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319. To the extent that Myers’s assignment of error involves questions of law or
statutory interpretation, we review such questions de novo. Young v. Commonwealth, 70
Va. App. 646, 652-53 (2019). To the extent that we are reviewing findings of fact made by the
trial court, we defer to the trial judge in his findings of fact unless we find he is plainly wrong in
that finding without credible evidence to support that finding of fact. Jones v. Commonwealth,
279 Va. 521, 528 (2010).
A. Whether the Statutory Exception for Carrying a Concealed Handgun in a Motor Vehicle Applies
to the Specific Facts in this Case
Code § 18.2-308 prohibits any person from carrying a handgun about his person while
keeping it hidden from common observation without possessing a concealed handgun permit.
Subsection (C) of that statute provides exceptions, including the exception at issue here.
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Specifically, Code § 18.2-308(C)(8)1 provides that the statute shall not apply to “[a]ny person who
may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle
or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.”
Appellant argues that, since the firearm was in a backpack that was zipped shut and the backpack
was in a vehicle, the exception applies. Appellant does not contend nor does the evidence show that
he openly displayed the firearm or that he possessed a concealed handgun permit.
This Court has previously found two situations in which the motor vehicle exception applies
– when the handgun is contained in a vehicle’s center console and in a vehicle’s glove compartment.
In Hodges v. Commonwealth, 64 Va. App. 687 (2015), this Court found that the motor vehicle
exception applied and reversed a conviction for concealed carry of a handgun where Hodges was in
the driver’s seat and a handgun was located in the vehicle’s center console and the console’s lid was
closed. In Doulgerakis v. Commonwealth, 61 Va. App. 417 (2013), this Court also found that the
motor vehicle exception applied and reversed a conviction where Doulgerakis was driving the
vehicle and a handgun was found in the glove compartment, which was closed and latched, but not
locked. The Court noted that for a weapon to be “secured,” as required in the motor vehicle
exception, “does not mean ‘locked.’” Id. at 421.
For the motor vehicle exception to apply, the handgun must be “secured in a container or
compartment.” The statute does not actually define “compartment” or “container.” The American
Heritage Dictionary (2d College ed. 1991) defines “compartment” as “1. One of the parts or
spaces into which an area is subdivided. 2. A separate room, section, or chamber.” A
“compartment,” then, includes subcomponents or sections of the vehicle itself, such as a glove
1
For the sake of conciseness, in this opinion, we refer to this subsection as “the motor
vehicle exception.”
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compartment or a center console. See, e.g., Doulgerakis, 61 Va. App. at 422; Hodges, 64
Va. App. at 699-700. The backpack here clearly would not qualify as a compartment.
The American Heritage Dictionary, supra, defines “container” as “[s]omething, as a box
or barrel, in which material is held or carried; receptacle.” The statute is clear that the handgun
is to be secured. In Doulgerakis, this Court defined “secured” as “in safekeeping or custody” or
“well-fastened.” Doulgerakis, 61 Va. App. at 422. Whether something, such as a container or
compartment, is actually secured is a finding of fact.
The trial judge, as the fact finder, found “that under these circumstances of this case, that a
zipped compartment on a backpack would not be well-fastened” and the statutory exception did not
apply, although he did note that “there might be some cases or some instances or some factual
scenarios where a backpack would be well-fastened.”
In light of the findings of fact of the trial judge, we hold that the trial judge did not err in
holding that the handgun in this particular case under these specific facts did not meet the
requirement of being secured in a compartment or container. Given that the statute does not
define a “container,” it is extremely difficult to draw a bright line that definitively decides
exactly what would be a secured container. In many cases, the question of whether a container is
one that can be considered “secured” for purposes of the statutory exception is one that will be
fact-specific to that particular case. For example, a secured container would include, but would
not necessarily be limited to, a gun safe or a carrying case for a firearm. However, following
closely the plain language of the statutory exception as crafted and enacted by the General
Assembly (and following this Court’s reasoning in Hodges and Doulgerakis), we cannot say that
it was the intention of the General Assembly to have the motor vehicle exception apply to the
backpack in this particular case.
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B. The “About the Person” Requirement
In considering whether a weapon is “about the person,” the Supreme Court has
consistently considered “whether the weapon remained ‘so accessible as to afford prompt and
immediate use’ by the defendant while it was concealed.” Pruitt v. Commonwealth, 274 Va. 382,
387-88 (2007) (quoting Sutherland v. Commonwealth, 109 Va. 834, 835 (1909)). See also Schaaf
v. Commonwealth, 220 Va. 429, 430 (1979). “‘About the person’ must mean that it is so connected
with the person as to be readily accessible for use or surprise if desired.” Sutherland, 109 Va. at
835.2 “Whether a weapon is upon a person or is readily accessible are largely questions of fact that
must be left to reasonable inferences drawn by the fact finder from the facts and circumstances of
the case.” Leith v. Commonwealth, 17 Va. App. 620, 621 (1994) (superseded by statute on other
grounds, as stated in Hodges, 64 Va. App. at 696).
In the case currently before us, the evidence shows that Myers was seated in the driver’s seat
and the handgun was in a backpack on the floorboard of the front passenger seat. The trial judge, as
the fact finder, found that the concealed weapon “was within arm’s reach of him and he could
access that item based on his position in the car.” Appellant argues that the gun was not readily
accessible because he would have had to reach over to retrieve the handgun out of the backpack.
However, this Court has previously rejected the argument that a weapon is “inaccessible ‘as a
matter of law’ if available only upon noticeable ‘body motion.’” Watson v. Commonwealth, 17
Va. App. 124, 127 (1993). The mere fact that Myers may have had to reach from the driver’s seat
into a backpack on the floorboard of the front passenger seat does not mean that the handgun was
not “so accessible as to afford prompt and immediate use” by the defendant. Consequently, we
2
In Schaaf, the Supreme Court stated, “While Sutherland can be distinguished from this
case on the facts, to the extent that there may be a conflict Sutherland is overruled.” Schaaf, 220
Va. at 432. Nevertheless, the Supreme Court in Schaaf also quoted with approval this same
language from Sutherland that defines “about the person.” Id. at 431.
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cannot say that the trial court was plainly wrong in finding that the handgun was about Myers’s
person.
III. CONCLUSION
Given the specific facts of the particular case before us, we cannot say that the trial court
was plainly wrong in its finding that the concealed handgun in the zipped backpack on the
floorboard of the front passenger seat was not in a secured container or compartment. The trial
court was also not plainly wrong in finding that the handgun was about Myers’s person when Myers
was sitting in the driver’s seat and the handgun was in a backpack on the floorboard of the front
passenger seat next to him. Myers was also neither carrying the handgun openly nor did he have a
permit for a concealed handgun.
For all of these reasons, we cannot conclude that no rational fact finder would have found
the evidence sufficient to find Myers guilty of carrying a concealed weapon without a permit.
Therefore, we affirm his conviction for carrying a concealed weapon, second offense.
Affirmed.
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