Gun in Console Was Not ‘Concealed’

An officer’s testimony about arresting defendant in his vehicle on the Blue Ridge Parkway established that the console of defendant’s vehicle was closed, but the officer could not recall if it was latched, and the commonwealth failed to meet its burden to show that defendant’s gun was not “secured” in a container within the vehicle; the Court of Appeals reverses defendant’s concealed weapon conviction under Va. Code § 18.2-308 and dismisses the charge.

Defendant’s conviction for driving on a suspended license is affirmed, based on the prosecution’s introduction of a DMV printout of defendant’s driving record showing that he had been notified that his license was suspended “BY LAW ENFORCEMENT” before he was arrested on the Blue Ridge Parkway on Dec. 5, 2013.

This case is distinguishable from Bishop v. Commonwealth, 275 Va. 9 (2008). First, unlike the confusing entry on the driving record in Bishop, the entry in this case is clear: defendant was “NOTIFIED … BY LAW ENFORCEMENT” on Sept. 3, 2013, that his license had been suspended. There being no analogous ambiguity in this case, the reasoning of Bishop does not control.

Also, unlike in Bishop, the commonwealth here relies on the provisions of Va. Code § 46.2-416(A), which provides that if the certificate of the commissioner or someone designated by him for that purpose shows that the notice or copy has been so sent or provided, it shall be deemed prima facie evidence that the notice or copy has been sent and delivered or otherwise provided to the driver.

Given the lack of ambiguity in the record itself and the General Assembly’s direction in Code § 46.2-416 that the certified driving record in this case is prima facie evidence of the violation of Code § 46.2-301, the evidence at trial was sufficient to allow the fact finder to conclude the commonwealth proved defendant’s guilt.

Concealed weapon

Under Code § 18.2-308(C)(10), enacted in 2010, it is not a violation of Code § 18.2-308(A) to carry a handgun in a car’s glove compartment or console so long as the gun is “secured.” Consistent with Doulgerakis v. Commonwealth, 61 Va. App. 417 (2013), we agree with the commonwealth that “secured” is not synonymous with “closed.” To fall within the exception, the container within the vehicle must not only be closed, but also must be latched or otherwise fastened. However, that does not resolve the matter before us. Here, the trial court found the gun was not secured because it was “immediately accessible to defendant” and the cup over the gun showed the gun “was intentionally hidden.” It was error for the trial court to use the rationale from Leith v. Commonwealth, 17 Va. App. 620 (1994), as its reason for concluding the handgun was not secure under Code § 18.2-308(C)(10).

The commonwealth ultimately bears the burden to establish that the allegedly concealed weapon was not secure in a container within the vehicle. Here, the officers opened the console. Despite an officer not being able to recall at trial whether or not the console was latched, the officers possessed that information at the time the console was opened.

It is clear the evidence at trial was insufficient to support defendant’s conviction. The commonwealth conceded at argument that if it bore the burden of establishing that the gun was not secured, the evidence was insufficient to support the conviction. While we are not bound by this concession, the concession, coupled with the silence of the record on the critical question, makes clear that the evidence was insufficient to support defendant’s conviction for possessing a concealed weapon in violation of Code § 18.2-308(A). The conviction is reversed and the concealed weapon charge dismissed.

Affirmed in part, reversed in part, dismissed in part.

Hodges v. Commonwealth (Russell) No. 1243-14-3, May 5, 2015; Floyd County Cir.Ct. (Long) Cerid E. Lugar for appellant; Victoria Johnson, AAG, for appellee. VLW 015-7-130, 12 pp.