THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS GARY A. MILLS,
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
GRAFF DECKER CHIEF JUDGE
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
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."
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."
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.
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
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)).
§ 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 ...