Lead Opinion
UPON REHEARING EN BANC
This matter comes before the Court on a rehearing en banc following a divided panel opinion of this Court. Shakil Edwards (Edwards) appeals her conviction for possession of a tool, implement or outfit with the intent to commit larceny, in violation of Code § 18.2-94. Edwards contends that the evidence was insufficient as a matter of law to prove that the purse she carried at the time she committed the larceny was a tool, implement or outfit within the meaning of Code § 18.2-94. For the following reasons, we agree and reverse her conviction.
I. BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party in the circuit court.” Porter v. Commonwealth,
The security guard stopped Edwards and the other women after they left the store. The security guard found four items of children’s clothing inside Edwards’ purse. The three other women also had stolen merchandise in their purses. Other than the stolen merchandise, three of the women’s purses, including Edwards’ purse, were completely empty. The fourth woman had a pair of slippers in her purse. Edwards admitted that they entered the store to steal merchandise and that she had stolen the clothing found in her purse. She was arrested and subsequently charged with grand larceny and possession of a tool, implement or outfit with the intent to commit larceny.
At the conclusion of the Commonwealth’s case-in-chief, Edwards moved to strike the Commonwealth’s evidence, arguing that her purse was not a tool, implement or outfit. The trial court denied the motion. Edwards testified in her own defense and admitted to stealing the clothing. Edwards also explained why she carried an empty purse into the store. The trial court asked Edwards, “Why were you carrying an empty purse around?” Edwards answered, “Oh, ‘cause I wanted to go to the store and steal.” “And steal?” responded the judge. Edwards replied, “Yes.”
At the close of her case, Edwards again moved to strike the Commonwealth’s evidence on the grounds that her purse was not a “tool, implement or outfit” as contemplated by Code § 18.2-94. The court denied her motion, finding that the purse “was used to steal, and ... it fits within the definition of burglary tools.” The trial court subsequently convicted Edwards of petit larceny
On May 27, 2008, a divided three-judge panel of this Court reversed Edwards’ conviction. The majority held that Edwards’ purse is not a tool, implement or outfit within the meaning of Code § 18.2-94. The dissent reasoned then, as it does today, that Edwards, by emptying the purse of all its contents, “clearly used the purse for a purpose other than its ordinary, lawful one, thereby causing it to become something other than an ordinary purse.” Edwards v. Commonwealth,
The Commonwealth petitioned the full Court for rehearing en banc. On July 1, 2008, we granted the Commonwealth’s petition and stayed the mandate of the panel opinion.
II. ANALYSIS
On appeal, Edwards reiterates her argument that her purse is not a tool, implement or outfit. She claims that this is so because her purse “can in no way be considered innately burglarious in character.” The Commonwealth argues that tools, implements and outfits need not be “innately burglarious” to fall within the scope of Code § 18.2-94 and that Edwards’ purse is an “outfit,” within the meaning of the statute. We agree with the Commonwealth that Code § 18.2-94 does not apply only to burglarious tools, implements and outfits. However, we disagree with the Commonwealth’s characterization of the purse as an “outfit.” Thus, for the following reasons, we hold that Edwards’ possession of the purse is not punishable under Code § 18.2-94.
First, contrary to Edwards’ argument, Code § 18.2-94 does not apply only to “innately
If any person have in his possession any tools, implements or outfit, with intent to commit burglary, robbery or larceny, upon conviction thereof he shall be guilty of a Class 5 felony. The possession of such burglarious tools, implements or outfit by any person other than a licensed dealer, shall be prima facie evidence of an intent to commit burglary, robbery or larceny.
Under a cursory reading of the statute, there appears to be a disconnect between the first and second sentences. The first sentence criminalizes the possession of “any tools, implements or outfit[s]” with the intent to commit one of the listed crimes. Id. (emphasis added). However, the second sentence, apparently referring to the first sentence, states “such burglarious tools, implements or outfit[s]____” Id. (emphasis added). One might read the word “such burglarious tools ...” in the second sentence as modifying the first or at least indicating that the General Assembly only intended to punish the possession of burglarious tools, implements and outfits.
However, in Burnette v. Commonwealth,
“If any person ha[v]e in his possession any tools, implements, or other outfit known as burglars’ tools, implements, or outfit, with intent to commit burglary, robbery, or larceny, he shall be deemed guilty of a felony, and on conviction thereof, shall be punished by confinement in the penitentiary not less than five nor more than ten years. The possession of such burglarious tools, implements, or outfit, shall be prima facie evidence of an intent to commit burglary, robbery, or larceny.”
Id. at 787-88,
If, as Edwards argues, the word “burglarious” still modifies the words “tools, implements or outfit” in the first sentence, “such” would then clearly not be meaningless. Essentially, Edwards contends that the statute should be read as follows:
If any person have in his possession any [burglarious] tools, implements or outfit, with intent to commit burglary, robbery or larceny, upon conviction thereof he shall be guilty of a Class 5 felony. The possession of such burglarious tools, implements or outfit by any person other than a licensed dealer, shall be prima facie evidence of an intent to commit burglary, robbery or larceny.
Clearly, inserting “burglarious” into the first sentence gives meaning to “such” in the second sentence. Contrary to the holding in
Reading the first sentence as applying to all tools, implements or outfits and the second sentence as applying only to burglarious tools, implements and outfits relieves any tension between the two sentences. Burnette implied as much when it explained the basis for distinguishing between ordinary tools and burglarious tools. The Court stated:
[T]ooIs or implements may be, and usually are, designed and manufactured for lawful purposes. But it is unusual for a person, on a lawful mission, to have in his possession a combination of tools and implements suitable and appropriate to accomplish the destruction of any ordinary hindrance of access to any building, or to a vault or safe. All the statute does is to create a presumption of a criminal intent from proof of possession of burglarious tools or implements.
Id. at 790,
Construing the statute in this way is consistent with prior precedent. In Moss v. Commonwealth,
In order to convict Edwards under Code § 18.2-94, the Commonwealth was required to prove that Edwards’ purse was either a tool, implement or outfit. “The terms ‘tools,’ ‘implements,’ and ‘outfit’ are not defined statutorily.” Williams v. Commonwealth,
In Williams, we recognized that “[cjlearly, the terms ‘tool,’ ‘implement’ and ‘outfit’ have somewhat different but overlapping meanings.” Id. at 343,
would lead to “absurd results.” See Washington [v. Commonwealth,272 Va. 449 , 455,634 S.E.2d 310 , 313 (2006)]. For example, one obvious result ... would be that every concealment of merchandise in violation of Code § 18.2-103, regardless of the item’s value, would also constitute a Class 5 felony under Code § 18.2-94 because any and every item used to accomplish the element of concealment from public view, such as a purse, coat or a pocket, would also constitute a “larcenous implement.” Had the General Assembly intended such a result, they would have punished the crime of concealment accordingly.
Id. at 342,
Clearly, an ordinary purse is neither a “tool” nor an “implement” as we defined those terms in Williams. However, it remains for us to determine whether a purse constitutes an “outfit” as contemplated by
Under Mercer’s definition of outfit, the possession of any “wearing apparel” that a thief chose to wear for the “particular” purpose of committing burglary, robbery or larceny would be punishable under Code § 18.2-94. That broad definition of outfit would lead precisely to the “absurd results” we warned of in Williams—the conclusion that any and every item of apparel used to accomplish the element of concealment from public view, such as a coat or a pocket, would also constitute a “larcenous outfit.” As we explained in Williams, the General Assembly could not have intended that result.
The broad definition used in Mercer is also inconsistent with the traditional rule of statutory construction known as noscitur a sociis. Noscitur a sociis is the principle that “a word is known by the company it keeps.” S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 378,
Under that definition, we hold that an ordinary purse is not “special equipment” for the purpose of shoplifting. The fact that Edwards deliberately emptied the purse in order to facilitate a theft does not change that fact. Emptying the purse to conceal stolen items does not convert the purse into a shoplifter’s “outfit” anymore than slipping a
III. CONCLUSION
For these reasons, we hold that the trial court erred in holding that the evidence was sufficient as a matter of law to prove that Edwards violated Code § 18.2-94. Therefore, we reverse her conviction and dismiss the indictment for that offense.
Reversed and dismissed.
Notes
. At trial, the Commonwealth failed to prove that the clothing Edwards stole was worth over $200. Thus, the court only convicted her of petit larceny rather than grand larceny. See Code § 18.2-95.
. As codified in 1919, the statute in its entirety read as follows:
If any person break and enter the dwelling-house of another in the night time with the intent to commit a felony or larceny therein, he shall be deemed guilty of burglary, though the thing stolen or intended to be stolen, be of less value than fifty dollars. If any person be guilty of burglary, he shall be punished with death, or in the discretion of the jury, by confinement in the penitentiary for not less than five nor more than eighteen years. If any person have in their possession any tools, implements or outfit, with the intent to commit burglary, robbery, or larceny, he shall be deemed guilty of a felony, and be punished by confinement in the penitentiary not less than five nor more than eighteen years. The possession of such burglarious tools, implements, or outfit by other than a licensed dealer shall be prima facie evidence of an intent to commit burglary, robbery or larceny.
Code of 1919, Sec. 4437. The Revisors’ note referred to in Burnette immediately follows the above paragraph and reads in full as follows: "The phraseology of this section has been changed so as to include common law burglary under the statute, and there is a transposition of sentences at the beginning of the section, but no material change has been intended.” Id.
. "Wearing apparel” is itself a broad term and in the context of clothing, "outfit,” customarily refers to a "set of garments” rather than a single item or accessory e.g. a new Easter outfit and would not, in any event, include a purse which is carried rather than worn. See Oxford’s English Dictionary 1015 (1989).
. Although we overrule Mercer’s definition of outfit, we do not pass judgment on whether the pants worn by the appellant in Mercer fall within the scope of the statute. Furthermore, contrary to the dissent’s assertion, we do not hold that clothing can never be considered a tool, implement or outfit within the meaning of the statute.
. This definition is also consistent with an aggregation of otherwise innocent items, assembled specifically for one of the criminal purposes prohibited by the statute such as those inventoried by the Supreme Court in Burnette:
“a loaded 32-caliber Colt’s blue steel revolver, two new 10 inch hacksaw blades in a brown paper bag, ... one pair of white cotton gloves; ... one 36 inch pick, one 30 inch wrecking bar; one 3 pound sledge hammer; one 18 inch screw driver; one two-cell flashlight, one inch steel drill bit, and one 7/16 inch steel drill bit; ... four inch steel drill bits; and ... one pair of work gloves----”
Burnette,
Concurrence Opinion
join, concurring.
I concur with that portion of the majority opinion that concludes that appellant’s purse is not a “tool[ ], implement ] or outfit” within the meaning of Code § 18.2-94, and therefore concur in the judgment it reaches. I write separately to express my view that Burnette v. Commonwealth,
The statute creating the crime of possessing “burglarious tools, implements or outfit” was part of legislation first adopted by the General Assembly in 1878 (Acts of 1877-78, p. 288), and as the Burnette Court noted, the statute read:
“Any person who shall be guilty of burglary, shall be punished with death, or, in the discretion of the jury, by confinement in the penitentiary for a period not less than five nor more than eighteen years. If a person break and enter the dwelling-house of another in the night time, with intent to commit larceny, he shall be deemed guilty of burglary, though the thing stolen, or intended to be stolen, be of less value than twenty dollars. If any person ha[v]e in his possession any tools, implements, or other outfit known as burglars’ tools, implements, or outfit, with intent to commit burglary, robbery, or larceny, he shall be deemed guilty of a felony, and on conviction thereof, shall be punished by confinement in the penitentiary not less than five nor more than ten years. The possession of such burglarious tools, implements, or outfit, shall be prima facie evidence of an intent to commit burglary, robbery, or larceny.”
Burnette,
The 1878 statute codified burglary as it then existed and created a statutory offense to possess “burglarious tools, implements, or other outfit known as burglar’s tools, implements, or outfit, with the intent to commit burglary, robbery or larceny....” The “burglarious tools, implements or outfit” in the statute were “known as burglar’s tools.” Id.
The statute continued in that form without change in the Code of 1887 as section 3704. However, in 1919 the language of the statute was altered by transposing several sentences, and included the definition of common law burglary and omitted the descriptive phrase “known as burglar’s tools, implements, or outfit.” The 1919 Code Revisors’ note to the amended code section stated: “The phraseology of this section has been changed so as to include common law burglary in the definition of burglary under the statute, and there is a transposition of sentences at the beginning of the section, but no material change has been intended.” Burnette,
At its 1950 Session, the General Assembly recodified the earlier statute as Code § 18-159. The recodified statute included the same two criminal provisions, burglary and the possession of “burglarious tools” with the requisite intent, as was in the 1919 statute.
In 1953, in Burnette, the Supreme Court, considering a constitutional challenge to the evidentiary presumption contained in Code § 18-159, noted that:
[t]he statutory crime with which defendant is charged consists of two essential elements: (1) possession of burglarious tools; and (2) an intent to commit burglary, robbery, or larceny therewith. The burdenwas upon the Commonwealth to prove possession of such tools by defendant beyond a reasonable doubt. The statute makes possession prima facie evidence of the criminal intent.
Id. at 792,
[t]he mere possession of burglarious tools is not a crime under the statute. It is possession with intent to use them to commit a crime. The tools or implements may be, and usually are, designed and manufactured for lawful purposes. But it is unusual for a person, on a lawful mission, to have in his possession a combination of tools and implements suitable and appropriate to accomplish the destruction of any ordinary hindrance of access to any building, or to a vault or safe.
Id. at 790,
a loaded 32-caliber Colt’s blue steel revolver, two new 10 inch hacksaw blades ..., [ ] one pair of white cotton gloves[,] ... one 36 inch pick, one 30 inch wrecking bar[,] one 3 pound sledge hammer[,] one 18 inch screw driver[,] one two-cell flashlight, one 1/2 inch steel drill bit, one 7/16 inch steel drill bit[,] ... four 1/4 inch steel drill bits[,] ... [and] one pair of work gloves with buck palms and cotton baeks[,]
while designed for, and adaptable to, lawful uses, “were implements and tools commonly used by house breakers and safe crackers,” which “prove[d] that they were ‘burglarious tools’ within the meaning of the statute.” Id. at 791, 792,
Subsequently, at its 1960 session, the General Assembly recodified Code § 18-159, creating two separate statutes embodying the two substantive offenses formerly contained in Code § 18-159: Code § 18.1-61 (burglary) and Code § 18.1-87 (possession of “burglarious tools, implements or outfit”). At its 1975 session, the General Assembly again recodified Code § 18.1-87, this time as Code § 18.2-94, the code section under which appellant was convicted. It placed Code § 18.2-94 in Chapter 5, Article 2 of Title 18.2, entitled “Burglary and Related Offenses.”
Since its inception in 1878, the crime of possession of “burglarious tools” has been combined with and associated with the crime of burglary. That the General Assembly has since 1878 continually placed the statutory offense of possession of “burglarious tools” in that part of the Code pertaining to burglary demonstrates, in my view, that the General Assembly intended to retain the close historical connection between the offenses of the possession of “burglarious tools, implements or outfit” and burglary. Expanding the meaning of “burglarious tools, implements or outfit” beyond “a combination of tools and implements suitable and appropriate to accomplish the destruction of any ordinary hindrance of access to any building, or to a vault or safe,” is, in my view, a departure from its historical mooring, particularly considering the legislative history of the “burglarious tools” statute and the Supreme Court’s analysis of Code § 18.2-94’s predecessor, Code § 18-159, in Burnette.
In my view, this Court, in Mercer v. Commonwealth,
Accordingly, while I concur in the judgment of the majority in concluding that appellant’s purposefully emptied purse, used to conceal merchandise which she had stolen, was not a “tool” within the meaning of Code § 18.2-94, I am unable to join in its rationale, which in my view unnecessarily expands those items made criminal by Code § 18.2-94 to include items not “suitable and appropriate to accomplish the destruction of any ordinary hindrance of access to any building, or to a vault or safe.” Burnette,
Dissenting Opinion
join, dissenting.
Although I agree with the majority that Code § 18.2-94 does not solely criminalize possession of just “burglarious” tools, implements, and outfits, I would find here, given appellant’s preparation of her purse before she entered the store so that it better assisted her with her plan to commit larceny by inconspicuously stealing merchandise, that the trial court did not err in convicting her under Code § 18.2-94. Therefore, I must dissent from the majority opinion.
Code § 18.2-94 criminalizes the possession of “any tools, implements or outfit, with intent to commit burglary, robbery or larceny” (emphasis added), as a Class 5 felony. The legislature’s use of the term “or” twice in this statute is important, both linguistically and conceptually, because the placement of “or” in these lists creates two sets of disjunctive variables, thus creating nine combinations of words: burglary tools, larcenous outfits, robbery implements, and so on. Thus, the statute by its plain language prohibits the possession of nine categories of items, if the perpetrator possesses any of them with the requisite criminal intent. The one thing the statute clearly does not do—as its title misleadingly suggests
However, after reviewing the facts in this case and the relevant law, I must respectfully disagree with the majority opinion’s conclusion that possession of this purse was not criminal behavior as defined by Code § 18.2-94. In the case currently before us, appellant chose a particular purse, emptied it, and carried it into the store with the admitted intention to use the purse to hide items that she was stealing from the store. Thus, the issue in this case is whether a purse, purposefully emptied of everything that it would ordinarily contain so that it can be used for shoplifting, can be considered a larcenous “outfit.” As opposed to the majority opinion’s definition of “outfit,” I define “outfit” by reference to the plain meaning of the term and our previous precedent, and, therefore, I would find the trial court did not err in finding appellant violated Code § 18.2-94 when she prepared and carried the purse into the store with the intention to use the purse as an aid to her plan to steal from the store. Therefore, I must dissent.
When “a statute contains no express definition of a term, the general rule of statutory construction is to infer the legislature’s intent from the plain meaning of the language used.” See Hubbard v. Henrico Ltd. Pshp.,
When I consider the archetypal burglar’s outfit, I imagine a black jumpsuit with multiple pockets for stowing tools, perhaps topped
The majority opinion, instead of deferring to the ordinary meaning of outfit, proposes to define outfit as “the tools or instruments comprised in any special equipment; as a carpenter’s or a surgeon’s outfit.” This definition ignores the plain meaning of “outfit” and instead defines the term such that it has no meaning apart from “tool” or “implement.” This new definition of the term runs counter to the “elementary rule of statutory construction that every word in the statute must be given its full effect if that can be done consistent with the manifest purpose of the act.” Home Beneficial Life Ins. Co. v. Unemployment Compensation Comm’n,
In support of its definition, the majority opinion expresses concern that the every day definition of “outfit” would allow every instance of hiding stolen merchandise in a pocket to fall under Code § 18.2-94. I find this position unpersuasive and, thus, disagree with the majority opinion’s analysis on this point.
First, I believe this concern is more appropriate to an argument in the policy context involving the appropriate language to use in a statute, as opposed to a legal analysis in an appellate opinion addressing the actual language used in a statute. An appellate court examines the language of a statute to determine what behavior the General Assembly intended to criminalize; it is not the role of the courts to evaluate the wisdom of the language codified by the legislature. Watkins v. Hall,
Second, although a panel of this Court noted in Williams,
To me, this fact differentiates appellant’s situation from a shoplifter who places a stolen item in a purse that is otherwise being used normally. The pocketbook in such a situation would not fall under the proscription in Code § 18.2-94 because the thief possessed it primarily for an innocent purpose. Here, in contrast, appellant went to some trouble before entering the store, planning this part of her outfit so that it served her criminal purpose rather than any innocent one. She had no innocent reason for possessing the purse when she entered that store—instead, she had it with her as “special equipment” to aid her in her larceny. Therefore, I do not believe we, as an appellate court, should second-guess both the trial court’s finding and appellant’s own characterization of the item as specifically intended, and only intended, so that she could “go to the store and steal.” Carter,
. Although Code § 18.2-94 is titled "Possession of Burglarious Tools, Etc.,” that title does not add an additional element to the crime or dictate the actual elements of the crime proscribed by that statute. See Mason v. Commonwealth,
. Contrary to the view expressed in the majority opinion, I believe Mercer was properly decided. The holding in Mercer is consistent with the plain language of the statute, allowing a conviction under Code § 18.2-94 if the person possesses an "outfit” intending to use it to commit "larceny,” one of the nine classes of objects proscribed under that statute. In addition, it is interesting to note that the appellate history of Mercer includes the denial of Mercer’s petition for review by the Supreme Court of Virginia. Mercer v. Commonwealth, Rec. No. 990848 (Va. Aug. 2, 1999).
. The majority opinion suggests in a footnote that "outfit” still has meaning because a collection of innocent items becomes an "outfit,” citing Burnette v. Commonwealth,