Auer v. Com.

• Decision Date: 25 October 2005
• Docket Number: Record No. 0851-04-1.
• Citation: 621 S.E.2d 140,46 Va. App. 637
• Parties: Bryan David AUER v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

621 S.E.2d 140

46 Va. App. 637

Bryan David AUER v. COMMONWEALTH of Virginia.

Record No. 0851-04-1.

Court of Appeals of Virginia, Chesapeake.

October 25, 2005.

COPYRIGHT MATERIAL OMITTED

Afshin Farashahi (Afshin Farashahi, P.C., on brief), Virginia Beach, for appellant.

Virginia B. Theisen, Assistant Attorney General (Judith Williams Jagdmann, Attorney General; Alice T. Armstrong, Assistant Attorney General, on brief), for appellee.

Present: BENTON, HUMPHREYS and CLEMENTS, JJ.

CLEMENTS, Judge.

Bryan David Auer was convicted by a jury of aggravated involuntary manslaughter, in violation of Code § 18.2-36.1, and driving under the influence of alcohol (DUI), in violation of Code § 18.2-266. On appeal, Auer contends the trial court erred during the punishment phase of his trial by admitting into evidence his prior misdemeanor conviction under a city ordinance for DUI. Finding no error, we affirm the trial court's judgment.

I. BACKGROUND

On August 4, 2003, Auer was indicted by a grand jury for aggravated involuntary manslaughter and DUI, second offense. On the Commonwealth's motion, the latter indictment was amended prior to trial to DUI, first offense. After hearing the evidence presented at trial on those charges, a jury convicted Auer of DUI, first offense, under Code §§ 18.2-266 and 18.2-270, and aggravated involuntary manslaughter, under Code § 18.2-36.1.

During the punishment phase of the trial, the Commonwealth sought to introduce into evidence a certified copy of a general district court order reciting Auer's prior criminal conviction for misdemeanor DUI, in violation of Virginia Beach City Code § 21-336. Rejecting Auer's argument that evidence of a prior conviction based on a city ordinance was inadmissible under Code § 19.2-295.1, the trial court admitted the order into evidence.¹

At the conclusion of the punishment phase of the trial, the jury fixed Auer's punishment at nine years and six months of incarceration on the manslaughter charge and twelve months of incarceration on the DUI charge. The trial court subsequently sentenced Auer pursuant to the jury's verdict.

This appeal followed.

II. ANALYSIS

Auer contends, on appeal, that Code § 19.2-295.1 prohibits the Commonwealth from presenting evidence at the punishment phase of a bifurcated jury trial of a defendant's prior convictions under local laws. Thus, he concludes, the trial court erred in admitting into evidence his prior conviction for misdemeanor DUI, which was based on Virginia Beach City Code § 21-336, and the case must be remanded for resentencing. We disagree.

"`[T]he admissibility of evidence is within the broad discretion of the trial court, and [its ruling thereon] will not be disturbed on appeal in the absence of an abuse of discretion.'" Jones v. Commonwealth, 38 Va.App. 231, 236, 563 S.E.2d 364, 366 (2002) (quoting Blain v. Commonwealth, 7 Va.App 10, 16, 371 S.E.2d 838, 842 (1988)). However, "a trial court `by definition abuses its discretion when it makes an error of law.'" Shooltz v. Shooltz, 27 Va.App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996)). "In determining whether the trial court made an error of law, `we review the trial court's statutory interpretations and legal conclusions de novo.'" Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth, 28 Va.App. 187, 193, 503 S.E.2d 233, 236 (1998)).

Code § 19.2-295.1 provides in pertinent part that, at the punishment phase of a bifurcated jury trial,

the Commonwealth shall present the defendant's prior criminal convictions by certified, attested or exemplified copies of the record of conviction, including adult convictions and juvenile convictions and adjudications of delinquency. Prior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories.

As framed by Auer, the sole issue in this appeal is whether the trial court violated the terms of Code § 19.2-295.1 when, during the punishment phase of trial, it allowed the Commonwealth to present evidence to the jury of Auer's DUI conviction for violating Virginia Beach City Code § 21-336. Auer contends Code § 19.2-295.1 prohibits the admission into evidence of convictions based on local laws; the Commonwealth insists the statute contains no such prohibition.

At the center of this dispute is the question whether Auer's DUI conviction for violating Virginia Beach City Code § 21-336 is a "prior conviction," as that term is used in Code § 19.2-295.1. Auer argues that, because penal statutes are to be construed strictly against the Commonwealth, Code § 19.2-295.1's provision that "[p]rior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories" should be read as providing an exhaustive list of the convictions that may be presented to the jury at sentencing. Thus, Auer's argument continues, the omission of convictions under local laws from that list reflects the legislature's intent that such convictions not be considered by the jury in fixing a convicted defendant's punishment. To hold otherwise, Auer maintains, would be to add terms to the statute and to conclude that the legislature did not mean what it actually expressed.

The Commonwealth claims that Auer's reading of Code § 19.2-295.1 is too restrictive. Nothing in the language of the statute itself, the Commonwealth argues, indicates that the legislature intended to prohibit the presentation at sentencing of prior convictions under local laws. Moreover, the Commonwealth adds, reading such a prohibition into Code § 19.2-295.1 would defeat the statute's purpose.

We recognize that "it is our function to interpret the meaning of the words in controversy as intended by the legislature." Tiller v. Commonwealth, 193 Va. 418, 420, 69 S.E.2d 441, 442 (1952). However, "unless there is ambiguity in a statute, there is no need for interpretation, for the province of construction lies wholly within the domain of ambiguity." Id. "Words are ambiguous if they admit to `being understood in more than one way[,]' ... refer to `two or more things simultaneously[,]' ... are `difficult to comprehend,' `of doubtful import,' or lack `clearness and definiteness.'" Diggs v. Commonwealth, 6 Va.App. 300, 301-02, 369 S.E.2d 199, 200 (1988) [(en banc)] (quoting Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)).

Gilliam v. Commonwealth, 21 Va.App. 519, 522, 465 S.E.2d 592, 594 (1996) (first two alterations in original). "Ordinarily, when a particular word in a statute is not defined therein, a court must give it its ordinary meaning." Moyer v. Commonwealth, 33 Va.App. 8, 35, 531 S.E.2d 580, 593 (2000) (en banc).

Whether the legislature intended to exclude convictions under local laws from the meaning of "prior convictions," and thus prohibit the presentation of such convictions to the jury at sentencing, is not apparent on the face of Code § 19.2-295.1. As noted above, Code § 19.2-295.1 provides that "[p]rior convictions shall include convictions... under the laws of any state, the District of Columbia, the United States or its territories." The determinative word is "include," which means "to ... list ... as a part or component of a whole or of a larger group, class, or aggregate." Webster's Third New International Dictionary 1143 (1993).

Generally speaking, the word "include" implies that the provided list of parts or components is not exhaustive and, thus, not exclusive. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 4, 86 L.Ed. 65 (1941) (noting that "the term `including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle"); Fed. Election Comm'n v. Mass. Citizens for Life, 769 F.2d 13, 17 (1st Cir.1985), aff'd, 479 U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986) (observing that the word "includes" is "`usually a term of enlargement, and not of limitation" and therefore "`conveys the conclusion that there are other items includable, though not specifically enumerated'" (quoting 2A Norman J. Singer, Sutherland Statutes and Statutory Construction 133 (4th ed.1984) (internal quotation marks omitted))); Highway & City Freight Drivers Local No. 600. v. Gordon Transports, Inc., 576 F.2d 1285, 1289 (8th Cir.1978) (noting that, when the word "include" is used in a statute to define a term, "the fact that the statute does not specifically mention a particular entity ... does not imply that the entity falls outside of the definition"); Black's Law Dictionary 777 (8th ed.2004) ("[I]ncluding typically indicates a partial list....").

However, the word "include" is also commonly used in a restrictive, limiting sense. Helvering v. Morgan's, Inc., 293 U.S. 121, 125, 55 S.Ct. 60, 61, 79 L.Ed. 232 (1934) (recognizing that "the term `includes' may sometimes be taken as synonymous with `means'"); Bryan A. Garner, A Dictionary of Modern American Usage 363 (1998) (remarking that the word "include," "which traditionally has introduced a nonexhaustive list, is now ... widely [ ]used for consists of"). Used in this limiting sense, the term typically introduces an exhaustive list of all of the components or members that make up the whole. See Garner, supra; Random House Webster's College Dictionary 667-68 (2000) ("Include means to contain as a part or member of a larger whole; it may indicate one, several, or all parts." (second emphasis added)). Thus, when a statute uses the word "include" in this restrictive, limiting sense to define a term, it sets forth the entire definition, and no other elements or items are includable. Consequently, the fact that the statute does not expressly enumerate a particular item implies that the item "falls outside of the...