Handgun in zippered bag on car seat not ‘carried’

Where appellant was convicted of carrying a concealed handgun while intoxicated, the conviction is reversed. The holstered handgun was in a zippered bag on the passenger seat of the vehicle he was driving.

Under the relevant statute, to convict, the evidence must show that appellant “carried the weapon” and that it was not just “about his person.” Under the rule of lenity, a narrow definition of “carry” must be applied, that is, the weapon must be physically carried to violate the statute.

Background

A police officer saw a vehicle being driven “erratically” and made a traffic stop. Appellant Morgan was driving. He told the officer there was a gun in a zippered bag on the front passenger seat and produced a valid concealed weapons permit.

The officer smelled alcohol on Morgan, performed a breath test and arrested him for driving under the influence. He was convicted in the general district court for carrying a concealed weapon while intoxicated, driving under the influence and impersonating a police officer.

The circuit court affirmed all convictions, as did the Court of Appeals. We reverse.

Positions on appeal

“Morgan takes the position that a conviction under Code § 18.2-308.012 requires that the firearm be carried about the person and hidden from common observation. He contends that on the facts of the present case the handgun was neither carried nor about his person because it was in a zipped bag on the passenger seat of his vehicle.

“Conversely, the Commonwealth asserts that Code § 18.2-308.012 does not require a finding that the handgun be ‘about the person’ because the language is omitted from the statute. Furthermore, the Commonwealth contends that Morgan carried the handgun because the term ‘carry’ within the statute should be broadly construed to include transporting and conveying from one place to another.”

Analysis

“Code §§ 18.2-308 and -308.012 are parts of the same statutory scheme involving concealed weapons; thus, it is beneficial to our analysis to address the interplay between them to glean the underlying legislative intent.

“Code § 18.2-308(A) provides, in relevant part, that ‘[i]f any person carries about his person, hidden from common observation, (i) any pistol, revolver, or other weapon … he is guilty of a Class 1 misdemeanor.’

“Conversely, Code § 18.2-308.012 states, in relevant part, that ‘[a]ny person permitted to carry a concealed handgun who is under the influence of alcohol or illegal drugs while carrying such handgun in a public place is guilty of a Class 1 misdemeanor.’ …

“In analyzing the two code sections involved here, we note that the phrase ‘about his person’ found in Code § 18.2-308(A) is conspicuously omitted from Code § 18.2-308.012. The omission of this language is telling as it indicates that the General Assembly did not intend for the two statutes to mean the same thing. “Thus, Code § 18.2-308.012 must be interpreted to require evidence that the firearm was carried by Morgan and not just about his person. Having determined that ‘carry’ is the operative word, it is therefore necessary to determine the meaning of ‘carry’ in the context of Code § 18.2-308.012. …

“In the context of Code § 18.2-308.012, the word ‘carry’ can be interpreted multiple ways. As the Commonwealth argues, the plain meaning of ‘carry’ could include mere conveyance or transporting. … However, consistent with Morgan’s position, the same term could reasonably be limited to physically holding an item on one’s person. …

“In determining which definition of ‘carry’ to apply in this case, we cannot overlook the fact that that Code § 18.2-308.012 is a penal statute and, therefore, the rule of lenity applies. Accordingly, the application of the rule of lenity, in this case, requires us to use the narrower definition of the word ‘carry’ is a penal statute and, therefore, the rule of lenity applies.

“‘[I]t is an ancient maxim of the law that all such statutes must be construed strictly against the state and favorably to the liberty of the citizen.’ … Accordingly, the application of the rule of lenity, in this case, requires us to use the narrower definition of the word ‘carry.’ …

“By omitting the phrase ‘about his person’ in Code § 18.2-308.012, the General Assembly appears to have intended to narrow the scope of the statute to apply only when physically carrying a handgun on one’s person.”

Application

“Morgan had a valid concealed weapons permit and provided it to the officer during the traffic stop. Morgan did not physically carry the handgun on his person, but rather, the handgun was holstered and contained within a small, zipped backpack on the front passenger seat of his vehicle.

“Under these facts, Morgan did not ‘carry’ the handgun as contemplated by Code § 18.2-308.012, and his conviction was in error.”

Reversed and final judgment.

Morgan III v. Commonwealth, Record No. 211033; (Powell) Dec. 29, 2022. From the Court of Appeals of Virginia. James Panagis (Wolcott Rivers Gates, on briefs), for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General of Virginia, on brief), for appellee. VLW 022-6-060, 8 pp.