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‘Curtilage’ Defined in Concealed Gun Case

A defendant who was standing in the middle of a road that bisected his property and led to his brother-in-law’s property, which was the last house on the road and situated on property gifted to him by defendant, was not on the “curtilage” of his home, 20 feet away, when police found defendant with a gun in his pocket after the brother-in-law alerted defendant to be on the lookout for his niece’s boyfriend who had threatened to come to the property and hurt her; the Court of Appeals says the statutory and common law definitions of curtilage are the same, and affirms defendant’s conviction for carrying a concealed weapon in violation of Va. Code § 18.2-308.

The term “curtilage,” as contained in Va. Code § 18.2-308(B), is as defined at common law. Although the Code does not expressly define “curtilage,” because the term’s plain meaning is well established at common law, we assume the General Assembly intended to assign its established meaning. The term “curtilage,” as used in the legal context, is historically understood to refer to an extension of the home that is so intertwined with the home that the law must provide it the same protection as the home itself.

Because “curtilage” is properly defined at common law by its relationship to the residence and its use by its occupants, we reject as erroneous the trial court’s conclusion that non-exclusive easements are per se excluded from being considered part of a home’s curtilage within the meaning of this statute. While an area’s use by third parties may be relevant in determining whether the area is in the home’s curtilage, that fact alone does not categorically exclude it. Instead, courts must look to the area’s use and connection to the home itself rather than its use by third parties.

Conversely, this court also rejects defendant’s argument that simply because he owned the property on which he was standing at the time of the offense, he was within the curtilage of his home and therefore exempt under subsection (B) from criminal prosecution under subsection (A). Such an interpretation would deprive the courts of an inquiry into the particular use of the area in question and its relationship with the home.

Using the four-factor test for curtilage from U.S. v. Dunn, 480 U.S. 294 (1987), as urged by the commonwealth, is inconsistent with the General Assembly’s use of the term in other sections of the Code. We hold that the common law definition of curtilage articulated in Bare v. Commonwealth, 122 Va. 783 (1917), is applicable to Code § 18.2-308(B) because it is consistent with a plain reading of the statute, the legislature’s intent and the well-established rules of statutory interpretation.

Here, the trial court did not expressly rule whether the exception language in Code § 18.2-308(B) was a statutory defense or an element of the crime, but simply concluded that because the area where defendant was standing was subject to a non-exclusive easement it was therefore excluded from being part of the curtilage and the exception language of the statute did not apply.

It is clear that subsection (B) provides a statutory affirmative defense. Requiring the commonwealth to prove this negative would undermine the general prohibition intended by the legislature because the commonwealth would be required to prove in the negative all the exceptions provided for in subsections (B)-(D).

Viewing the facts in the light most favorable to the commonwealth, defendant failed to establish that he was standing on anything more than just property he owned. The record contains insufficient evidence that the section of Holly Tree Road where defendant was standing at the time of the offense was “habitually used for family purposes” or “the carrying on of domestic employment.” Although defendant was only 20 feet away from his house, there was a steep slope between his location in the road and his home. While the road bisects defendant’s property, there is no evidence in the record that he used either the road itself or the property on the other side of the road for anything but storing his farming equipment or as a “junk yard.” We conclude the evidence supports a finding that defendant failed to produce evidence that he was on the curtilage of his home at the time of the offense, and as a result, could avail himself of the statutory exception in Code § 18.2-308(B).

Conviction affirmed.

Foley v. Commonwealth (Humphreys) No. 0619-13-3, March 25, 2014; Roanoke County Cir.Ct. (Swanson) Neil A. Horn for appellant; Victoria Johnson, AAG, for appellee. VLW 014-7-089, 14 pp.

VLW 014-7-089

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