Teresa B. Preston v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
TERESA B. PRESTON
MEMORANDUM OPINION * BY
v. Record No. 2059-00-1 JUDGE ROBERT J. HUMPHREYS
JUNE 12, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Rodham T. Delk, Jr., Judge
(Teresa B. Preston, pro se, on briefs).
Appellant submitting on briefs.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Teresa B. Preston appeals her conviction, after a bench
trial, for taking a deer with an unlawful device in violation of
Virginia Code § 29.1-556. Specifically, Preston alleges that the
trial court erred in 1) failing to grant her motion to dismiss on
the ground that it improperly construed § 10-26 of the Code of
Southampton County; 2) finding the device used to hunt the deer
illegal; 3) ruling that Southampton ordinance § 10-26 was
unenforceable due to lack of notice to the Game Commission; and 4)
finding Code § 29.1-528 to allow the use of muzzleloading rifles,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
but also to enable counties to prohibit their use during certain
seasons for certain animals.
On the morning of November 12, 1999, Preston entered a
Southampton County hardware store and checked in an eight-point
buck (male deer) that she had killed in Southampton County.
Preston shot the deer with a Remington Model, 700-ML, .50 caliber
"muzzleloader." She used saboted ammunition with a .44 caliber
ball. The date on which Preston killed the deer was during the
early special hunting season for deer, approximately two weeks
prior to the beginning of the general hunting season for deer.
Later that same evening, Preston sent an e-mail to Glenn
Askins, an official with the Department of Game and Inland
Fisheries (DGIF), and reported what she had done. Preston wrote,
"This is my first deer !!!, [sic] and if the Department of Game &
Inland Fisheries chooses to cite me for violating Southampton's
Miscellaneous offences [sic] ordinance § 10-26, I would be most
grateful." Preston went on to write that she believed the current
Southampton ordinance, § 10-26, barring the use of a rifle of a
caliber larger than twenty-two hundredths of an inch (.22) for
hunting any animal in the county, with the exception of small game
animals outside of the general open season, to be invalid due to
the County's failure to provide DGIF with notice of the ordinance,
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prior to its enactment in 1991.1 As a result, Preston contended
that the previous version of § 10-26, which she alleged allowed
"hunting of game species outside the general season for deer and
turkey with firearms," was the ordinance in effect at the time she
killed the deer. 2 Preston ended her e-mail stating, "We need to
1
Southampton County Code § 10-26 states:
Hunting Weapons Restricted
(a) It shall be unlawful for any person to
hunt in the county with a rifle of a caliber
larger than twenty-two one hundredths of an
inch (.22); provided, however, that this
section shall not be construed to:
(1) Prohibit any person from shooting
groundhogs with a larger caliber rifle
between March 1 and August 31.
(2) Prohibit hunting for small game animals
with muzzle-loading rifles except during the
general open season for the hunting of deer
and turkey with firearms; and provided,
further, the caliber of ball used in such
muzzle-loaded rifle shall not exceed
forty-five one hundredths of an inch (.45).
(b) Any person violating the provisions of
this section, upon conviction, shall be
punished by a fine of not more than five
hundred dollars ($500.00).
2
The previous version, § 11-36.1, which was recodified as
§ 10-26 in 1991, read as follows:
Hunting -- Use of large-caliber weapons
prohibited; exceptions.
It shall be unlawful for any person to hunt
in the county with a rifle of a caliber
larger than twenty-two one hundredths of an
inch (.22); provided, however, that this
section shall not be construed to:
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get this before a judge. Can regional help?" In response, and
after investigating the matter, DGIF cited Preston for "tak[ing] a
deer with an unlawful device as defined in 4 VAC § 15-270-20." 3
At trial, Preston, who was representing herself, raised a
motion to dismiss at the close of the Commonwealth's case, arguing
that "no offense was committed." Specifically, Preston argued
that 4 VAC § 15-90-80 allows "muzzleloading firearms," as opposed
(a) Prohibit any person from shooting
groundhogs with a larger caliber rifle,
except during general open season for
hunting game animals with firearms; or
(b) Prohibit hunting with muzzle-loading
rifles except during the general open season
for the hunting of deer and turkey with
firearms; and provided further, the caliber
of ball used in such muzzle-loaded rifle
shall not exceed forty-five one hundredths
of an inch (.45).
Any person violating the provisions of this
section, upon conviction, shall be punished
by confinement in jail for not more than six
months and a fine of not more than five
hundred dollars, either or both. (4-28-80.)
3
Title 4 of the Virginia Administrative Code § 15-270-20,
provides the following:
Rifles prohibited in hunting bear and deer
in certain counties and cities: Except as
otherwise provided in 4 VAC 15-270-30 of
this chapter or by local ordinance, it shall
be unlawful to use a rifle of any caliber
for the hunting of bear and deer in the
counties of Chesterfield, Isle of Wight, New
Kent, Southampton and Sussex and in the
cities of Chesapeake and Suffolk (that
portion formerly Nansemond County).
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to rifles, to be used in all cities where firearms are allowed.4
Preston now argued that ordinance § 10-26 was validly enacted and
that since it permitted the use of muzzleloading rifles for
hunting small game animals outside the general open season for
deer and turkey, under 4 VAC § 15-90-80 the use of muzzleloading
firearms must be permitted.
In response, the Commonwealth argued the 1991 re-enactment or
recodification of the Southampton County Code abolished all prior
laws in the County. Since, as required by Virginia Code
4
4 VAC § 15-90-80 provides the following, in relevant part:
Muzzleloading gun hunting.
A. Early special muzzleloading season. It
shall be lawful to hunt deer with
muzzleloading guns from the first Monday in
November through the Saturday prior to the
third Monday in November, both dates
inclusive, in all cities and counties where
hunting with a rifle or muzzleloading gun is
permitted east of the Blue Ridge Mountains,
except on national forest lands in Amherst,
Bedford and Nelson counties and in the
cities of Chesapeake, Suffolk (east of the
Dismal Swamp Line) and Virginia Beach.
* * * * * * *
F. Muzzleloading gun defined. A
muzzleloading gun, for the purpose of this
section, means a single shot flintlock or
percussion weapon, excluding muzzleloading
pistols, .45 caliber or larger, firing a
single projectile or sabot (with a .38
caliber or larger projectile) of the same
caliber loaded from the muzzle of the weapon
and propelled by at least 50 grains of black
powder (or black powder equivalent).
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§ 29.1-528, the amendment to the language of § 10-26, formerly
§ 11-36.1, was not sent to DGIF as required by Code § 29.1-528,
and apparently not published by DGIF, the ordinance was
unenforceable. 5 The Commonwealth argued that, therefore, there
was no language in the Southampton County Code, either permitting
or barring the use of muzzleloading weapons, as would be required
by 4 VAC § 15-90-80.
5
Virginia Code § 29.1-528 provides that:
Counties or cities may prohibit hunting with
certain firearms. --
A. The governing body of any county or city
may, by ordinance, prohibit hunting in such
county or city with a shotgun loaded with
slugs, or with a rifle of a caliber larger
than .22 rimfire. However, such ordinance
may permit the hunting of groundhogs with a
rifle of a caliber larger than .22 rimfire
between March 1 and August 31. Such
ordinance may also permit the use of
muzzle-loading rifles during the prescribed
open seasons for the hunting of game
species. Any such ordinance may also
specify permissible type of ammunition to be
used for such hunting.
B. No such ordinance shall be enforceable
unless the governing body notifies the
Director by registered mail prior to May 1
of the year in which the ordinance is to
take effect.
C. In adopting an ordinance pursuant to the
provisions of this section the governing
body of any county or city may provide that
any person who violates the provisions of
the ordinance shall be guilty of a Class 3
misdemeanor.
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The trial court overruled Preston's motion finding "this is a
.50 caliber rifle. The county's code does not permit the use of
a rifle of .50 caliber under any reading of it . . . ." The
trial court ultimately convicted Preston of the charge, finding:
The law in this case is clear. However you
wish to interpret 10-26, as enforceable or
unenforceable, in any event there is a
prohibition against the taking of deer in
Southampton County by a muzzleloading rifle
such as was used in this case regardless of
the caliber, and that prohibition existed on
November 12, 1999, when the deer was taken
in this case.
On appeal, Preston contends that the trial court erred in
overruling her motion to dismiss because it misread § 10-26,
determining that the .45 caliber restriction referred to rifle
caliber, instead of ball. Preston also argues that the trial
court erred in finding the gun she used to be a "muzzleloading
rifle," and in finding that the provisions of § 10-26 were void
due to Southampton County's failure to properly notify DGIF of
the changes in 1991. 6
"We are bound by the trial court's findings of historical
fact unless those findings are plainly wrong or without evidence
to support them. We review de novo questions of law and the
6
Preston also argues that the trial court erred in finding
that Virginia Code § 29.1-528 enables counties such as
Southampton to permit the use of muzzleloading rifles, but also
allows them to prohibit the use of the muzzleloading rifle
during certain seasons and for certain animals. However, we do
not address this argument as Preston failed to raise this
question in her petition for appeal. See Rule 5A:12(c).
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trial court's application of defined legal standards to the
particular facts of a case." Timbers v. Commonwealth, 28 Va.
App. 187, 193, 503 S.E.2d 233, 235-36 (1998) (citations
omitted).
The trial court correctly found that 4 VAC
§ 15-90-80 permits the hunting of deer with muzzleloading guns
during early special deer season. However, this only applies to
those cities and counties where hunting with a rifle or
muzzleloading gun is permitted. We do not read § 10-26 of the
Southampton County Code to permit deer hunting with
muzzleloading rifles.
Although muzzleloading gun is defined by 4 VAC
§ 15-90-80(B), neither the regulations nor the Virginia Code
define the term muzzleloading rifle. In light of this, we turn
to the ordinary dictionary definition of the term to determine
its meaning. Contrary to Preston's argument, we are not bound
by the definition of "rifle," as it appears in the Code of
Federal Regulations § 179.1 et seq., interpreting the provisions
of the National Firearms Act. "Ordinarily, when a particular
word in a statute is not defined therein, a court must give it
its ordinary meaning. In interpreting a statute, the Code of
Virginia constitutes a single body of law, and other sections
can be looked to where the same phraseology is employed." Moyer
v. Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000)
(en banc) (citations omitted). However, we are not bound by
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similar phraseology utilized in federal sources not applicable
to the statute at issue.
Webster's Third New International Dictionary 1954 (1981),
defines the ordinary meaning of "rifle" as "a firearm having a
rifled bore and intended to be fired from the shoulder."
Sergeant Lannie Chitwood of DGIF testified that the weapon in
question was a "muzzle loading rifle." This testimony clearly
supported the trial court's determination that Preston's gun met
the definition of a "rifle," as that term is used in § 10-26.
Preston is incorrect in arguing that the trial court made
the determination that § 10-26 was invalid due to Southampton
County's failure to notify DGIF of the amendments. In fact, on
the motion to strike, the trial court accepted as true Preston's
argument that § 10-26 was valid. In addition, on final
judgment, the trial court made alternative findings ruling that
if § 10-26 was a valid ordinance, hunting with muzzleloading
rifles is not permitted in Southampton County, with the
exception of hunting small game animals outside of the general
open season for deer. In the alternative, if § 10-26 was not
valid, the trial court ruled that hunting with muzzleloading
rifles is still not permitted under 4 VAC § 15-80-90 as, due to
the recodification of the Southampton County Code, there would
be no ordinance in Southampton either permitting or barring the
use of this particular firearm.
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Finally, Preston correctly argues that in making its ruling
on her motion to strike, the trial court misread § 10-26 as it
pertained to the appropriate caliber of firearm versus ball.
However, as set forth above, we find that the trial court
reached the correct result in both the ruling on the motion to
strike, as well as final judgment. See Harris v. Commonwealth,
33 Va. App. 325, 332, 533 S.E.2d 18, 21 (2000) (as long as the
correct reason, along with a factual basis to support it, is
raised in the trial court, an appellate court may affirm the
judgment of a trial court when it has reached the right result
for the wrong reason). Therefore, we affirm the judgment of the
trial court.
Affirmed.
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