Turner v. Commonwealth , 295 Va. 104 ( 2018 )

PRESENT: All the Justices
JACK EUGENE TURNER
OPINION BY
v. Record No. 161804 ELIZABETH A. McCLANAHAN
March 1, 2018
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
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
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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 Bay
1
Raising a separate issue, Turner sought to argue to the Court of Appeals that he had an
absolute right under the First Amendment to display the noose in a threatening manner on his
own property. The Court of Appeals ruled that this argument was procedurally defaulted under
Rule 5A:20(e) because he “failed to cite any authority whatsoever in support” of the argument in
his opening brief. Turner, 67 Va. App. at 61, 792 S.E.2d at 306. Turner sought to raise the same
argument in his opening brief to this Court, referring only generally to the First Amendment.
Assuming without deciding that the argument is not procedurally defaulted, we need not address
it because Turner abandoned it altogether at oral argument.
3
Found., 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 (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
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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
2
Indeed, the General Assembly has repeatedly demonstrated that it knows how to make a
proscription apply specifically to public property when that is desired. See, e.g., Code § 10.1-
2209 (making it “unlawful to post or erect any historical marker, monument, sign or notice, on
public property or upon any public street, road or highway in the Commonwealth” unless a
certain supporting written certificate has been issued “attesting to the validity and correct record
of the historic event, incident or fact set forth in the marker”); Code § 18.2-282.1 (making it
“unlawful for any person to point, hold, or brandish a machete or any weapon, with an exposed
blade 12 inches or longer, with the intent of intimidating any person or group of persons and in a
manner that reasonably demonstrates that intent,” and providing that if the violation occurs
“upon public property within 1,000 feet of” any public, private, or religious elementary, middle,
or high school, including buildings and grounds, he is guilty of a Class 6 felony); Code § 18.2-
323.01 (making it “unlawful for any person to dispose of a dead body . . . (i) on private property
without the written permission of the landowner or (ii) on public property”); Code § 33.2-802
(making it “unlawful for any person to dump or otherwise dispose of trash, garbage, refuse, litter
. . . or other unsightly matter on public property”).
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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 S.E.2d at 241-42. On appeal, it was
conceded that the language defendant used constituted disorderly conduct within the usual
definition of that term. Defendant argued, however, that “before any party can be convicted of
disorderly conduct . . . he must be physically present in the highway or other public place,”
3
See also Levick v. MacDougall, 294 Va. 283, 295 n.11, 805 S.E.2d 775, 781 n.11
(2017); Newberry Station Homeowners Ass’n v. Bd. of Supervisors, 285 Va. 604, 626-27, 740
S.E.2d 548, 560-61 (2013) (McClanahan, J., concurring).
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which, according to defendant, excluded him. Id. at 890, 45 S.E.2d at 242. The disorderly
conduct statute provided at that time, in relevant part: “If any person behaves in a riotous or
disorderly manner in any street, highway, public building, or any other public place . . . he shall
be guilty of a misdemeanor.” Id. (emphasis added).
The Court in Hackney relied on the following common definitions in deciding the
meaning of the term “public place” in the disorderly conduct statute:
Webster’s International Dictionary, 2d Ed., defines “place” as “a portion
of space occupied by a body;” “any particular spot or locality.” The same
authority defines “public” as “open to the knowledge or view of all; generally
seen, known, or heard; without privacy, concealment, etc.” “A place so near and
so open that persons traveling the highway can see card or dice playing thereat is
abstractly and per se a public place.” 6 Words and Phrases, p. 5807. Bouvier’s
Law Dictionary defines “public place” as “Any place so situated that what passes
there can be seen by any considerable number of persons, if they happen to look.”
Id. at 891-92, 45 S.E.2d at 242-43. Thus concluding that a public place in the context of the
disorderly conduct statute included private property generally visible by the public from some
other location, the Court held that defendant’s subject conduct on his porch had been committed
in a public place and affirmed his conviction. Id. at 893, 45 S.E.2d at 243.
The General Assembly did not alter this construction of the term “public place” in
response to Hackney, which has stood for more than 70 years, and we perceive no valid reason
for not applying it to the same term under Code § 18.2-423.2 (B) in a similar context in the
present case. In this regard, we are mindful that “considerations of stare decisis weigh heavily in
the area of statutory construction, where [the legislature] is free to change this Court’s
interpretation of its legislation.” Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977). 4
4
Turner urges us to adopt a more limited definition of the term “public place” found in
Black’s Law Dictionary: “Any location that the local, state, or national government maintains for
the use of the public, such as a highway, park or public building. Black’s Law Dictionary 1426
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3.
This construction of Code § 18.2-423.2(B) is also consistent with the general purpose and
design of the statute, which is to criminalize and deter what amounts to a true threat
communicated by the display of a noose, i.e., the intention to intimidate another by such display
and thereby reasonably place another in fear of death or bodily injury, as occurred here. Id. See
United States v. Dutcher, 851 F.3d 757, 761 (7th Cir. 2017) (addressing a “true threat” as a
criminal offense and affirming the conviction); United States v. Houston, 683 Fed. Appx. 434,
438 (6th Cir. 2017) (same); United States v. White, 810 F.3d 212, 219-221 (4th Cir. 2016)
(same). We thus, again, decline Turner’s prompting to exclude all private property from the
scope of subsection B of the statute through an unreasonably restrictive interpretation that would
greatly diminish this provision’s reach and deterrent effect upon the making of such threats. We
decide, instead, to apply from Hackney the obvious and rational meaning of the term “public
place” as used in Code § 18.2-423.2(B) to include private property generally visible by the
public from some other location, which was undisputedly the case with the site of Turner’s noose
display in his front yard.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the Court of Appeals upholding
Turner’s conviction under Code § 18.2-423.2.
Affirmed.
(10th ed. 2014). In light of Hackney, we decline to do so. We also note that this definition is at
odds with the general purpose and design of Code § 18.2-423.2, as addressed supra.
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