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Maurice Eley v. Commonwealth

Court of Appeals of Virginia

April 16, 2019



          Catherine A. Tatum, Assistant Public Defender, for appellant.

          Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Decker, Judge Alston and Senior Judge Frank Argued at Norfolk, Virginia



         Joshua Saquan Maurice Eley appeals his misdemeanor conviction for carrying a loaded firearm equipped with a high-capacity magazine in public in violation of Code § 18.2-287.4. On appeal, he suggests that he was entitled to the statutory exemption in Code § 18.2-308(C)(8) for a firearm carried in "a personal, private motor vehicle" and that the circuit court erred in ruling to the contrary. We hold that the exemption does not apply because the record establishes that the appellant knew that the truck in which he secured the firearm was stolen and, thus, it was not "a personal, private motor vehicle" within the meaning of the statutory exemption. Consequently, we affirm the challenged conviction.

         I. BACKGROUND

         On the evening of October 10, 2017, two detectives with the City of Newport News Police Department were patrolling within the city when they saw the appellant and another man sitting in a parking lot open to the public in a pickup truck that had been reported stolen. As the detectives approached, the appellant "quickly" got out of the driver's side of the vehicle and "tr[ied] to go away from it." They detained and questioned him. The appellant said that he "had gotten the vehicle from someone . . . that he . . . did not know very well." He "admitted having a feeling that . . . something [was] wrong with the vehicle," but he "never admitted . . . knowing that the vehicle was stolen."

         One of the detectives asked the appellant whether any firearms were in the truck. The appellant said yes and directed him to the center console, which was "secured with a latch." Upon opening the console, the detective found and seized a "center fire" .357-caliber, semiautomatic handgun. The weapon, which was loaded, "had an extended magazine with a 31-cartridge capacity."

         The appellant was charged with grand larceny of the pickup truck in violation of Code § 18.2-95 and misdemeanor possession of a firearm with a magazine capacity of twenty or more rounds in violation of Code § 18.2-287.4. By agreement with the Commonwealth, the appellant entered a guilty plea to the lesser charge of receiving stolen property, based on his possession of the truck, in violation of Code § 18.2-108. He entered a plea of not guilty to the misdemeanor firearm charge.

         Following presentation of the Commonwealth's evidence related to the firearm offense, the appellant made a motion to strike. He argued that he was entitled to possess the loaded firearm pursuant to a statutory exemption because the gun was secured within the stolen truck in a specified fashion. The prosecutor argued that the plain language of the statutory exemption showed that the General Assembly did not intend for the exemption to cover firearms secured in stolen vehicles. The trial court accepted the Commonwealth's reading of the statute and denied the motion to strike. The court reasoned that this interpretation "comports with our sense of privacy" because no "right to privacy [exists] in a personal, private stolen motor vehicle." (Emphasis added). The appellant was found guilty and sentenced to twelve months of incarceration for the firearm offense, with all twelve months suspended, and a $250 fine.

         II. ANALYSIS

         Where the "appellant argues that the trial court, under the facts adduced at trial, misapplied a statutory exception to the prohibition on carrying a concealed weapon[, ] . . . the argument presents a mixed question of law and fact, which we review de novo on appeal." Hodges v. Commonwealth, 64 Va.App. 687, 693 (2015). The facts in this case are not in dispute. Consequently, the issue is one of pure statutory interpretation, "a question of law . . . review[ed] de novo." Doulgerakis v. Commonwealth, 61 Va.App. 417, 419 (2013) (quoting Wright v. Commonwealth, 278 Va. 754, 759 (2009)).

         Code § 18.2-287.4(a) provides in relevant part that it is unlawful "to carry a loaded . . . semi-automatic center-fire rifle or pistol that expels . . . projectiles by action of an explosion of a combustible material and is equipped . . . with a magazine that will hold more than 20 rounds of ammunition . . . on or about his person" in any place "open to the public" in various jurisdictions within the Commonwealth, including the City of Newport News. The statute incorporates exemptions set out in two other provisions, Code §§ 18.2-308 and -308.016. Code § 18.2-287.4. As pertinent here, Code § 18.2-308(C)(8) provides an exemption for "[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." See generally Doulgerakis, 61 Va.App. at 420 (recognizing ...

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