Turner v. Commonwealth

295 Va. 104

809 S.E.2d 679

Jack Eugene TURNER

v.COMMONWEALTH of Virginia

Record No. 161804

Supreme Court of Virginia.

March 1, 2018

C. Holland Perdue, III (Raine & Perdue, on brief), for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General; Trevor S. Cox, Acting Solicitor General; Matthew R. McGuire, Acting Deputy Solicitor General, on brief), for appellee.

PRESENT: All the Justices

OPINION BY ELIZABETH A. McCLANAHAN

Jack Eugene Turner appeals the decision of the Court of Appeals of Virginia upholding his conviction for displaying a noose on a public place with the intent to intimidate, and placing others in reasonable fear of death or personal injury, in violation of Code § 18.2-423.2. Turner argues the display was not proscribed under the statute because, although visible from a public road, it was located on his own property. Concluding that the noose display was on a public place under our construction of the statute, we affirm the conviction.

I.

The material facts are undisputed. Turner owned and lived on property in Franklin County adjoining a public road known as Lindsay Lane. Several other families also lived on Lindsay Lane, some of whom were African-American. With the intent of intimidating his African-American neighbors, Turner displayed a noose in a tree in his front yard from which he hung a black, life-size mannequin. The display was located approximately 15 to 30 feet from Lindsay Lane and clearly visible from this public road. The evidence also established that the display directly tended to place certain of Turner's African-American neighbors in reasonable fear of death or bodily injury.

Based on these facts, Turner was indicted under Code § 18.2-423.2, and then tried and convicted of this crime in a bench trial. Code § 18.2-423.2 states:

A. Any person who, with the intent of intimidating any person or group of persons, displays a noose on the private property of another without permission is guilty of a Class 6 felony.

B. Any person who, with the intent of intimidating any person or group of persons, displays a noose on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.

Because Turner's noose display was located on his own property, subsection A of the statute was not implicated by his actions. In regard to subsection B, as relevant to this appeal, Turner argued unsuccessfully to the trial court in his pre-trial motion to dismiss, motion to strike the Commonwealth's evidence, and post-trial motion to reconsider, that because the display was on his own "private property" it was not located on a "public place" as required for a violation of subsection B. Code § 18.2-423.2(B). The term "public place" is not defined in the statute.

Affirming his conviction, the Court of Appeals in a published opinion likewise rejected Turner's contention that privately owned property cannot constitute a public place for purposes of Code § 18.2-423.2(B) and that his noose display was thus outside the scope of this provision. Turner v. Commonwealth , 67 Va.App. 46, 62-65, 792 S.E.2d 299, 306-08 (2016). In rejecting Turner's construction of the statute, the Court of Appeals substantially relied upon Hackney v. Commonwealth , 186 Va. 888, 891-93, 45 S.E.2d 241, 242-43 (1947), where this Court defined the term "public place" under the disorderly conduct statute to include private property generally visible by the public from some other location. Turner , 67 Va.App. at 63-65, 792 S.E.2d at 307-08.

II.

A.

Turner argues in this appeal that the Court of Appeals, like the trial court, erroneously construed the "public place" element of Code § 18.2-423.2(B) by holding that his noose display located on his own property but visible from Lindsay Lane was displayed on a public place for purposes of the statute.¹ As this presents a purely legal issue of statutory construction, we review the issue de novo. Scott v. Commonwealth , 292 Va. 380, 382, 789 S.E.2d 608, 609 (2016) ; Jordan v. Commonwealth , 286 Va. 153, 156, 747 S.E.2d 799, 800 (2013).

We are guided in our analysis of Code § 18.2-423.2 by familiar principles of statutory construction. When construing a statute, our "primary objective," as always, is "to ascertain and give effect to legislative intent" from the words of the statute. Lawlor v. Commonwealth , 285 Va. 187, 236, 738 S.E.2d 847, 875 (2013) (quoting Conger v. Barrett , 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010) ). In determining that intent, we are to give those words "their ordinary meaning, unless it is apparent that the legislative intent is otherwise," Phelps v. Commonwealth , 275 Va. 139, 142, 654 S.E.2d 926, 927 (2008) (citations omitted); and we "presume that the General Assembly chose, with care, the words that appear in a statute." Johnson v. Commonwealth , 292 Va. 738, 742, 793 S.E.2d 321, 323 (2016) (citation omitted). Furthermore, the "plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction." Meeks v. Commonwealth , 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (quoting Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998) ). We also presume that, in choosing the words of the statute, "the General Assembly acted with full knowledge of the law in the area in which it dealt." Philip Morris v. The Chesapeake BayFound. , 273 Va. 564, 576, 643 S.E.2d 219, 225 (2007) (citing United Masonry, Inc. v. Riggs Nat'l Bank , 233 Va. 476, 480, 357 S.E.2d 509, 512 (1987) ).

Additionally, because Code § 18.2-423.2 is a penal statute, it must be strictly construed with regard to any reasonable ambiguity, meaning Turner is "entitled to the benefit of any reasonable doubt concerning the statute's construction." Waldrop v. Commonwealth , 255 Va. 210, 215-16, 495 S.E.2d 822, 825 (1998) (citing Harward v. Commonwealth , 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985) ). This principle, however, "does not prevent consideration by the courts of the general purpose and design" of the statute when construing it. Tiller v. Commonwealth , 193 Va. 418, 423, 69 S.E.2d 441, 444 (1952) (citing Donnelley v. United States , 276 U.S. 505, 512, 48 S.Ct. 400, 72 L.Ed. 676 (1928) ). Therefore, "we will not apply ‘an unreasonably restrictive interpretation of the statute’ that would subvert the legislative intent expressed therein." Alger v. Commonwealth , 267 Va. 255, 259, 590 S.E.2d 563, 565 (2004)(quoting Armstrong v. Commonwealth , 263 Va. 573, 581, 562 S.E.2d 139, 144 (2002) ).

B.

Applying these principles, we conclude that Turner's noose display located in his front yard and clearly visible from a public road unmistakably falls within the purview of the Code § 18.2-423.2(B) element proscribing a noose display located on a public place.

1.

Under its express terms, Code § 18.2-423.2(B) is not limited to public property, Turner's contentions to the contrary notwithstanding. (Throughout this case, Turner has erroneously used the terms "public place" and "public property" interchangeably.) Comparing the statute's two proscribed locations for displaying a noose, we see in subsection A that the General Assembly has spoken in terms of "property," specifically "private property" (prohibiting the display of a noose on the private property of another without permission) whereas in subsection B it chose to speak in terms of a "place," specifically a "public place." "We have repeatedly stated that when the General Assembly uses two different terms in the same act, it is presumed to mean two different things." Roe v. Commonwealth , 271 Va. 453, 458, 628 S.E.2d 526, 529 (2006) (citations and internal quotation marks omitted). Accordingly, because we presume that the word "place" under subsection B means something different than the word "property" under subsection A, the term "public place " under Code § 18.2-423.2(B) (emphasis added) is not limited in scope to public property —a term nowhere found in the statute. In other words, under subsection B, whether a noose display is on privately or publicly owned property is not determinative of whether it is located on a public place. If the General Assembly had intended to limit the proscription of a noose display to public property under subsection B (in contrast to a particular category of "private property" in subsection A), it could have easily so provided in lieu of the language it actually used.² Since the General Assembly did not see fit to do so, we will not write into subsection B words of limitation that were not included. "It is the function of the judiciary to interpret statutes. Rewriting them is the function of the legislature."

Owens v. Commonwealth , 211 Va. 633, 638, 179 S.E.2d 477, 481 (1971) (quoting Caldwell v. Commonwealth, 198 Va. 454, 459, 94 S.E.2d 537, 540 (1956) ).³

Turner, in misapprehending this distinction between subsections A and B, bases his principal argument upon an erroneous premise. He asserts that because he would not be in violation of subsection A if he displayed a noose on someone else's private property with permission, he necessarily could lawfully display it on his own private property—regardless of his intent to use it to intimidate his neighbors and its direct tendency to place them in reasonable fear of death or bodily injury. The fallacy is in Turner's failure to recognize that a noose display placed on private property, whether with or without permission, remains subject to independent scrutiny under subsection B, including consideration of the "public place" element. Code § 18.2-423.2(B).

2.

In Hackney, this Court defined the term "public place" in a similar statutory context, as indicated above. There, the defendant, while standing on his porch, uttered "loud, boisterous, vile and abusive language" directed at a person passing along a nearby highway, and was convicted of disorderly conduct. 186 Va. at 889-90, 45...