Benjamine Leonard Foley, II v. Commonwealth of Virginia
63 Va. App. 186
| Va. Ct. App. | 2014Background
- Foley was convicted in Roanoke County Circuit Court of carrying a concealed weapon in violation of Code § 18.2-308(A).
- Foley argued the road easement on his property is part of the curtilage of his dwelling, which would raise Code § 18.2-308(B)’s exemption.
- Holly Tree Road runs through Foley’s four-acre property, with a non-exclusive easement, and Foley’s house is near the road while a junkyard area lies on the other side.
- Smallwood’s residence (Foley’s nephew by deed) sits at the end of Holly Tree Road; in 1988 Foley deeded to Smallwood an 18-foot easement over Foley’s remaining property for ingress/egress to a private road.
- On March 21, 2012, Foley stood in the middle of the road, about 20 feet from his house, and pointed a loaded handgun at approaching police vehicles; he was then arrested.
- The trial court excluded the easement area from the curtilage, ruling the exception in Code § 18.2-308(B) did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the non-exclusive easement exclude the area from curtilage? | Foley: area is curtilage and protected by 308(B). | Commonwealth: area is not curtilage due to easement. | No; curtilage is defined by relation to dwelling, not by easement alone. |
| Is Code § 18.2-308(B) a statutory defense or an element? | Foley bears burden of negating the offense if B is element. | Commonwealth bears burden if B is defense; prosecution need not negate B. | B is an affirmative defense; Foley bears burden to prove it. |
| Should Dunn four-factor analysis govern curtilage for 308(B)? | Dunn factors should not be applied to statutory scope; common-law curtilage applies. | Dunn factors help define curtilage. | Dunn is inapplicable for statutory interpretation of 308(B); apply common-law curtilage. |
| Was Foley on the curtilage given the use of the area and its relation to the home? | Proximity to home and use extend curtilage protection. | Record shows the area used as storage/junkyard, not for family purposes. | Evidence shows Foley was not on curtilage; 308(B) does not apply. |
Key Cases Cited
- United States v. Dunn, 480 U.S. 294 (1987) (establishes four-factor test for curtilage in Fourth Amendment context)
- Bare v. Commonwealth, 122 Va. 783 (1917) (defines curtilage as near-dwelling space used for family purposes)
- Jefferson v. Commonwealth, 27 Va. App. 1 (1998) (notes curtilage concept originates from common law)
- Chandler v. Peninsula Light & Power Co., 152 Va. 903 (1929) (limits broad readings of statutory language inconsistent with text)
- Meeks v. Commonwealth, 274 Va. 798 (2007) (defines undefined terms by ordinary meaning in statutory construction)
- Flanagan v. Commonwealth, 58 Va. App. 681 (2011) (outlines factors governing burden of persuasion for affirmative defenses)
- Mayhew v. Commonwealth, 20 Va. App. 484 (1995) (analyzes whether an exception is a defense or part of the offense)
- Tart v. Commonwealth, 52 Va. App. 272 (2008) (discusses burden allocation for affirmative defenses in Va. appellate context)
- Williams v. Commonwealth, 57 Va. App. 341 (2010) (states burden on Commonwealth to prove elements; defense burdens for affirmative defenses)