Virginia Lawyers Weekly VA Lawyers Weekly
A man’s conviction for carrying a concealed weapon while intoxicated has been reversed after the Supreme Court of Virginia found that the handgun in question, located in a zippered backpack on a car seat, was not “carried” under Virginia statute.
“Contrary to the Commonwealth’s argument, allowing a broad interpretation would stretch [the statute’s] purpose and punish behavior the legislature never intended to forbid,” Justice Cleo E. Powell wrote.
Joining Powell’s opinion in Morgan III v. Commonwealth (VLW 022-6-060) were Chief Justice S. Bernard Goodwyn, Justices D. Arthur Kelsey, Stephen R. McCullough, Teresa M. Chafin and Thomas P. Mann, and Senior Justice William C. Mims.
Background
In 2019, William Morgan III was pulled over by a police officer who noted Morgan was driving “erratically.” During the stop, Morgan made the officer aware that he had a gun “next to him in a zipped bag on his front passenger seat.”
The officer detained Morgan and located the bag, containing a holstered handgun. Morgan had a concealed weapons permit and provided the officer with the permit.
The officer performed a preliminary breath test on Morgan after smelling alcohol on him. Morgan was placed under arrest for driving under the influence.
Ultimately, Morgan would be charged and convicted in general district court for carrying a concealed weapon while intoxicated, driving under the influence and impersonating a police officer.
Morgan appealed all but the driving under the influence charge to the circuit court, which found him guilty on all charges following a bench trial.
Morgan then appealed to the Court of Appeals of Virginia. Virginia Code § 18.2-308.012, he argued, “requires a finding that the gun was carried about his person” and that his conviction was in error because the gun was neither on his person nor immediately accessible.
The appeals court ultimately affirmed Morgan’s convictions, stating in a footnote that “the trial court need not have found that the firearm was about appellant’s person because[,] unlike Code § 18.2-308(A), Code § 18.2-308.012 does not contain an ‘about the person’ element.”
Conviction reversed
At the high court, Morgan contended that a conviction under Va. Code § 18.2-308.012 “requires that the firearm be carried about the person and hidden from common observation.”
As the firearm was in a zipped bag away from his person, Morgan said the facts of his case did not meet the statutory requirements for conviction.
The commonwealth, meanwhile, claimed the statute does not require an “about the person” finding. In the commonwealth’s eyes, Morgan carried the firearm because the term “carry” in the relevant statute “should be broadly construed to include transporting and conveying from one place to another.”
The issue, Powell wrote, required an interpretation of Code § 18.2-308.012, and the court “must ‘ascertain and give effect to the intention’ of the General Assembly.”
Powell noted the cited statutes “are parts of the same statutory scheme involving concealed weapons,” but have slightly different wording.
The relevant portion of Va. Code § 18.2-308(A) states “[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.”
“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.”
— Justice Cleo E. Powell
But Va. Code § 18.2-308.012 states in pertinent 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,” Powell noted. “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.”
As such, Powell determined Va. Code § 18.2-308.012 required evidence that the handgun was carried by Morgan “and not just about his person.”
Further debate existed over the definition of “carry” that should be applied in the context of the statute.
The commonwealth supported a broad definition — including “mere conveyance or transporting” — while Morgan maintained the term “could be reasonably 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 Code § 18.2-308.012 is a penal statute and, therefore, the rule of lenity applies,” Powell wrote.
As such, Powell found the narrower definition of “carry” applied in this case.
“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,” Powell wrote.
The justice cited court precedent to this interpretation of “carry,” dating back to 1909’s Sutherland v. Commonwealth decision, which found a pistol “encased in a scabbard concealed within a saddlebag” carried by the defendant was not “about his person.”
As for the present case, Powell said Morgan had a valid concealed weapons permit, which was provided to the officer during the stop.
Further, under the court’s interpretation of the statute, the handgun was not “physically carr[ied]” by Morgan at the time of the stop.
“Under these facts, Morgan did not ‘carry’ the handgun as contemplated by Code § 18.2-308.012, and his conviction was in error,” Powell concluded, reversing Morgan’s conviction and dismissing the charge.
Firearm safety
Virginia Beach attorney James Panagis, who represented Morgan in this case, told Virginia Lawyers Weekly firearm safety has always been important to his client.
“[Morgan] is very respectful of the Supreme Court of Virginia’s opinion, and their recognition that what he did that day as to the firearm was not criminal,” he said.
As for what it means to carry a weapon, Panagis noted the court’s decision tracks with the history of concealed weapons law.
“When there’s a criminal statute, words are not given their extreme broad definitions,” Panagis said. “They’re given the narrow definition and they are given the intent that the General Assembly intended them to have.”
Senior Assistant Attorney General Virginia B. Theisen argued the case on behalf of the commonwealth. The attorney general’s office did not respond to a request for comment by deadline.
