Petition for Writ of Certiorari — Jack Eugene Turner, Petitioner v. Virginia

Supreme Court briefMay 30, 2018

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APPENDIX

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TABLE OF CONTENTS

Appendix Page

Published Opinion of

The Supreme Court of Virginia

entered March 1, 2018 ...................................................................................... 1a

Published Opinion of

The Court of Appeals of Virginia

entered November 22, 2016 .............................................................................. 9a

Sentencing Order of

The Franklin Circuit Court

entered December 15, 2015 ............................................................................ 25a

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PRESENT: All the Justices

JACK EUGENE TURNER

OPINION BY

ELIZABETH A. McCLANAHAN

March 1, 2018

v. Record No. 161804

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:

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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 30708.

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.

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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 § 10.12209 (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 § 18.2323.01 (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 § 18.2423.2(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

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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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PUBLISHED

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, AtLee and Senior Judge Clements

Argued at Lexington, Virginia

JACK EUGENE TURNER

v.

Record No. 2039-15-3

OPINION BY

JUDGE ROBERT J. HUMPHREYS

NOVEMBER 22, 2016

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FRANKLIN COUNTY

A. Joseph Canada, Jr., Judge Designate

C. Holland Perdue III (Raine & Perdue, PLC, on briefs), for

appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R.

Herring, Attorney General, on brief), for appellee.

Jack Eugene Turner (“Turner”) appeals the December 8, 2015 decision of the Circuit

Court for the County of Franklin (the “circuit court”) convicting Turner of one count of

displaying a noose with the intent to intimidate, in violation of Code § 18.2-423.2. Turner’s

three assignments of error are that the circuit court erred in (1) denying Turner’s motion to

dismiss because the circuit court failed to find that the displaying of a noose on private property

was protected free speech under the Constitution of the United States; (2) denying that Turner

lacked a constitutional right to express his freedom of speech by displaying a noose on his own

property; and (3) finding Turner guilty of displaying a noose with the intent to intimidate, in

violation of Code § 18.2-423.2.

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I. Background

On Wednesday, June 17, 2015, around 5:00 p.m., Traze Witcher (“Witcher”) was

returning home from her job as a nurse at Trinity Mission of Rocky Mount. Shortly after she

turned on to her street, Lindsey Lane in Rocky Mount, Franklin County, Virginia, she spotted an

all-black, life-size dummy hanging by a noose from a tree in the yard (“the noose display”) of the

second house, 108 Lindsey Lane.1 Witcher testified that, to her, it appeared as if a black man

was being hanged “from a rope from a tree in [Turner’s] yard.” Only hanging fifteen to thirty

feet from the side of the road, the noose display was visible to anyone traveling on Lindsey Lane.

Turner resides and owns the property at 108 Lindsey Lane. He resides next door to John

and Keena Mitchell (“John” or “Keena” or collectively “the Mitchells”).2 Keena is Witcher’s

sister; John is Witcher’s brother-in-law. The Witchers and the Mitchells are the only

African-American families residing on Lindsey Lane. The Mitchells live with their two male

children in the first house on Lindsey Lane. The Mitchells’ home sits approximately thirty to

forty feet from Turner’s home, and a fence does not separate the properties.

Immediately after seeing the noose display, Witcher turned around and drove directly to

the Mitchells’ house. Witcher testified that she was so fearful upon seeing the black dummy

hanging from the noose in Turner’s yard that all she could do after arriving at the Mitchells’

home was blow the car horn until Keena and John came outside. Witcher drove Keena and John

to see the noose and black dummy display. Upon seeing the display, John went to the Franklin

County Sheriff’s Department (the “Sheriff’s Department”) and reported the sight.

1

Lindsey Lane is a long gravel road with approximately a dozen homes located along it.

The only option for residents to access their property is by traveling this road past Turner’s

property.

2

At the time Turner presented the noose display, Witcher had lived on Lindsey Lane for

over ten years. The Mitchells had lived on Lindsey Lane for two years.

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The following day, Captain Paul Caldwell (“Captain Caldwell”) of the Sheriff’s

Department began investigating John’s report. Captain Caldwell arrived at Turner’s residence

around noon on Thursday, June 18, 2015. Captain Caldwell asked Turner about the object

hanging from the tree in Turner’s yard. Turner stated that it was a “scarecrow.” When Captain

Caldwell commented that there was no reason for a scarecrow without a garden, Turner implied

it was to scare away people. Turner explained that he was a “raciest” and that he “did like blacks

but not niggers.”3 At this point, Captain Caldwell told Turner that the noose display was a

“violation” and would be seized after Captain Caldwell spoke with the Commonwealth’s

Attorney. Then, Captain Caldwell and another officer photographed the dummy as it hanged in

the noose.4 After taking photographs, the noose display was removed and taken to the Sheriff’s

Department.

Prior to this incident, little contact occurred between Turner and the Witchers and the

Mitchells. On one occasion, in December 2013, the Mitchells received a letter from Turner

apologizing for the type of person he was and for not giving them a chance to let him find out

what kind of neighbors they were. On a separate occasion, Turner called the police on the

Mitchells to report them for a “humming noise” that he often complained emitted from the

Mitchells’ property. Yet, prior to June 17, 2015, neither John nor Keena Mitchell feared Turner.

As for Witcher, in April 2015 she borrowed Keena’s van only to have Turner flip his middle

finger at her as she passed his property. Then, Turner said “[you] people are nothing but

ignorant” and called Witcher a “stupid B.”

3

Turner pronounced the word “raciest” as the spelling reflects in this opinion and noted

in the record. It is understood that he meant racist.

4

The dummy’s neck was wrapped in duct tape and the rope had been tied around the

neck and one of the dummy’s arms. The dummy’s feet were hanging several feet off the ground.

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At trial, John testified that after seeing the noose display he was especially upset because

nine African-Americans had been killed in South Carolina earlier the same day at the

“Charleston Church Shooting.”5 He specified that the noose display caused him to fear for his

family’s safety. John’s wife, Keena, testified that upon seeing the noose display she feared for

herself and her children. In the days after seeing the noose display, John stated that before he

would leave for work in the morning he would check to make sure no one was standing in his

yard. Also, each day he questioned whether he was going to return home from work with

something thrown at his house or a message spray painted on his home. John attributed his

feelings to seeing the noose display on Turner’s property.

After the incident, the Mitchells no longer allow their sons to walk past Turner’s house

because the Mitchells are uncertain of what Turner is capable of doing. John explained that “if

[Turner] can hang a noose I don’t know what he is going to do.” Although the Mitchells did not

directly interact with Turner again after the noose display, Turner continuously hung a

confederate flag in a window of his home facing the Mitchells’ house.6

On August 3, 2015, a Franklin County grand jury issued an indictment against Turner

that on or about June 17, 2015, Turner “unlawfully and feloniously did display a noose on a

public place in a manner having a direct tendency to place another person in reasonable fear or

apprehension of death of [sic] bodily injury and with the intent of intimidating a person or group

of persons.” Turner was arrested for violating Code § 18.2-423.2.

5

The “Charleston Church Shooting” is a reference coined by the media and is commonly

used to refer to a mass shooting resulting in nine deaths that took place at the Emanuel African

Methodist Episcopal Church in downtown Charleston, South Carolina, on June 17, 2015.

6

Although not part of our analysis, the record reflects that while Turner was out on bond

awaiting his sentencing hearing, he placed a handmade cardboard sign against his house that

read, “Black nigger lives don’t matter, got rope.”

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Prior to trial, Turner filed a motion to dismiss arguing that the conduct for which he was

charged was protected free speech granted by the First Amendment of the Constitution and that

he did not violate Code § 18.2-423.2 because the noose display was exhibited on private

property, which is not property of another, a highway, or public place. On August 20, 2015, the

circuit court took Turner’s motion to dismiss under advisement and continued the case for a

bench trial on September 22, 2015.7

At trial, Turner pleaded not guilty to the charge against him. The circuit court overruled

Turner’s motion to dismiss and found that he hanged the noose in a public place because it was

up in a tree where it was visible from the road. The circuit court further found the noose display

was hanged to specifically intimidate others. Thus, the circuit court found Turner guilty of

violating Code § 18.2-423.2. On December 8, 2015, Turner appeared in the trial court for

sentencing. Prior to the sentencing hearing, the circuit court heard argument on Turner’s motion

to reconsider the finding of guilt. This motion was denied. Afterward, the circuit court

sentenced Turner to five years’ incarceration with four years and six months suspended.

II. Analysis

A. Standard of Review

“Under well-settled principles of appellate review, [this Court] consider[s] the evidence

presented at trial in the light most favorable to the Commonwealth, the prevailing party below.”

Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v.

Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). “This principle requires this

Court to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and

regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to

7

At the hearing regarding Turner’s motion to dismiss, Turner announced that he was not

arguing the constitutionality of the statute; rather, his argument is that he was unconstitutionally

seized.

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be drawn therefrom.’” Beck v. Commonwealth, 66 Va. App. 259, 262, 784 S.E.2d 310, 311

(2016) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)).

“It is the prerogative of the trier of fact to ‘resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Sierra v.

Commonwealth, 59 Va. App. 770, 776, 722 S.E.2d 656, 658 (2012) (quoting Brown v.

Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271, 274 (2010)).

“A factfinder’s resolution of conflicting facts, as well as competing inferences, receives

‘the highest degree of appellate deference.’” Coleman v. Commonwealth, 52 Va. App. 19, 23

n.2, 660 S.E.2d 687, 689 n.2 (2008) (quoting Thomas v. Commonwealth, 48 Va. App. 605, 608,

633 S.E.2d 229, 231 (2006)). This Court does “not ask whether we, as appellate judges, believe

‘the evidence at the trial established guilt beyond a reasonable doubt.’” Thomas, 48 Va. App. at

608, 633 S.E.2d at 231 (quoting Stevens v. Commonwealth, 46 Va. App. 234, 249, 616 S.E.2d

754, 761 (2005) (en banc)). Rather, we ask only whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Stevens, 46 Va. App. at

249, 616 S.E.2d at 761. Furthermore, “[t]he judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict, and will not be disturbed on appeal unless plainly

wrong or without evidence to support it.” Crislip v. Commonwealth, 37 Va. App. 66, 69, 554

S.E.2d 96, 97 (2001) (quoting Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642,

643 (1986)). Finally, questions of both constitutional interpretation and statutory construction

are reviewed de novo. Lawlor v. Commonwealth, 285 Va. 187, 240, 738 S.E.2d 847, 877

(2013).

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B. Whether Turner’s actions constitute “True Threats” which are not protected by the

First Amendment

“The hallmark of the protection of free speech is to allow ‘free trade in

ideas’—even ideas that the overwhelming majority of people might find

distasteful or discomforting.”

—Justice Sandra Day O’Connor, Virginia v. Black, 538 U.S. 343, 358 (2003).

In 2009, the General Assembly enacted Code § 18.2-423.2, which provides as follows:

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.

(Emphasis added). In his first two assignments of error, Turner argues that his conviction under

Code § 18.2-423.2(B) should be reversed because, notwithstanding the provisions of that statute,

he had “an absolute right under the First Amendment of the United States Constitution, however

reprehensible or offensive, to burn a cross, fly any flag or to hang a noose in/on [his] own private

property.”

It is a foundational right that “[t]he First Amendment, applicable to the States through the

Fourteenth Amendment, provides that ‘Congress shall make no law . . . abridging the freedom of

speech.’” Black, 538 U.S. at 358 (quoting U.S. Const. amend. I). “If there is a bedrock principle

underlying the First Amendment, it is that the government may not prohibit the expression of an

idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson,

491 U.S. 397, 414 (1989). “The First Amendment affords protection to symbolic or expressive

conduct as well as to actual speech.” Black, 538 U.S. at 358. However, protections afforded by

the First Amendment are not absolute.

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The Supreme Court of the United States has “long recognized that the government may

regulate certain categories of expression consistent with the Constitution.” Id. True threats are

among the certain categories of speech that a state may prohibit without violating the First

Amendment. Id. at 359. “‘True threats’ encompass those statements where the speaker means to

communicate a serious expression of an intent to commit an act of unlawful violence to a

particular individual or group of individuals.” Id. Even where the speaker does not “actually

intend to carry out the threat,” a “prohibition on true threats protects individuals from fear of

violence and from the disruption that fear engenders, in addition to protecting people from the

possibility that the threatened violence will occur.” Id. at 360. Intimidation in the

“constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a

threat to a person or group of persons with the intent of placing the victim in fear of bodily harm

or death.” Id.

Code § 18.2-423.2, Virginia’s noose statute, is substantially similar to Virginia’s

cross-burning statute, Code § 18.2-423, that was upheld by the Supreme Court of the United

States in Virginia v. Black. 538 U.S. at 347-48. Pursuant to Virginia’s cross-burning statute, it

is a felony “for any person or persons, with the intent of intimidating any person or group of

persons, to burn, or cause to be burned, a cross on the property of another, a highway or other

public place.” Id. at 348; Code § 18.2-423. The statute further provides that “[a]ny such burning

of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons,” a

provision that has no equivalent in Virginia’s noose statute. Black, 538 U.S. at 348; Code

§§ 18.2-423, 18.2-423.2.

Black consolidated three cases involving convictions based on Code § 18.2-423.

Appellant Black burnt a cross on the private property of another with permission during a Ku

Klux Klan (the “Klan”) rally in Carroll County, Virginia. Black, 538 U.S. at 348, 350. The

-8-

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other two appellants, Richard Elliott and Jonathan O’Mara, were not affiliated with the Klan and

had burnt a cross on the private property of an African-American man in the City of Virginia

Beach, Virginia. Id. at 350. The Supreme Court of Virginia held Code § 18.2-423

unconstitutional on its face. Black v. Commonwealth, 262 Va. 764, 779, 553 S.E.2d 738, 746

(2001). However, the Supreme Court of the United States considered and rejected the Supreme

Court of Virginia’s judgment that Virginia’s “cross-burning statute is unconstitutional because it

discriminates on the basis of content and viewpoint.” Black, 538 U.S. at 360. Disagreeing, the

Supreme Court of the United States held that the First Amendment permits a state to “choose to

prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Id.

at 363. Thus, Virginia can “outlaw cross burnings done with the intent to intimidate because

burning a cross is a particularly virulent form of intimidation.” Id. “Instead of prohibiting all

intimidating messages, Virginia may choose to regulate this subset of intimidating messages in

light of cross burning’s long and pernicious history as a signal of impending violence.” Id.

Ultimately, the Supreme Court concluded that a state may “choose to prohibit only those forms

of intimidation that are most likely to inspire fear of bodily harm.” Id. at 363 (emphasis added).

Turner quotes Black v. Commonwealth—which the Supreme Court of the United States

reversed in Virginia v. Black—for the general proposition that people have the right to “use

symbols to communicate,” and thus they may “reverently worship the cross or burn it as an

expression of bigotry.” 262 Va. at 778-79, 553 S.E.2d at 746. However, in Virginia v. Black,

the Supreme Court held that the “fact that cross burning is symbolic expression . . . does not

resolve the constitutional question.” 538 U.S. at 361. Here, the fact Turner hanged a dummy in

a noose in his front yard as a form of “symbolic expression . . . does not resolve the

constitutional question” either. Id. Rather, we look to whether the public display of a noose

evokes a “long and pernicious history as a signal of impending violence.” Id. at 363.

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18a

“During this country’s ‘lynching era’—the five decades between the end of

Reconstruction and the beginning of the Great Depression, between 1880 and 1930—at least

2,462 African American men, women, and children died at the hands of southern mobs.” Lu-in

Wang, The Complexities of “Hate”, 60 Ohio St. L.J. 799, 833 (1999). “The mob inflicted death,

death that was the result of extraordinary, sadistic cruelty.” Id. at 834. “Almost all of their

killers were white.” Id. at 833. We know from historical accounts that victims were often

tortured before being executed, sometimes “by being slowly roasted over a fire,” other times “by

having limbs or sexual organs amputated.” Id. at 834. After an execution, members of the mob

might distribute “pieces of the charred remains . . . as souvenirs to the mob whose members

desired a keepsake as a remembrance of the notable happening.” Id. “In short, the phenomenon

of lynching exhibited American society in its most ferocious and inhuman manifestation.” Id.

“[L]ynching had a powerful terroristic effect on the target population.” Id. at 835. “The

use of violence was aimed not just at the individual victim but at the black community generally,

and the gruesome details of each event were publicized widely through the press and word of

mouth.” Id. at 835-36. “As a result, southern blacks lived with the knowledge that any one of

them could be a victim at any time.” Id. at 836. Therefore, we conclude that the public display

of a noose evokes a “long and pernicious history as a signal of impending violence.” Black, 538

U.S. at 363. As a result of lynching’s history as a clear signal of impending violence, we hold

that the Commonwealth may choose to regulate this subset of intimidating messages through the

display of a noose in the same manner and for the same reason it may regulate the message

conveyed by the burning of a cross. Id. at 360.

Virginia’s statute prohibiting the display of a noose, Code § 18.2-423.2, contains the

same “intent of intimidating any person or group of persons” element contained in the

cross-burning statute, Code § 18.2-423. Moreover, Virginia’s noose statute does not contain the

- 10 -

19a

prima facie evidence provision contained in the cross-burning statute that the plurality in Black

found to be unconstitutional. 538 U.S. at 347-48, 367. Furthermore, the General Assembly

inserted an additional element in the noose statute not found in the cross-burning statute—in

order to convict a defendant for hanging a noose under Code § 18.2-423.2(B), the

Commonwealth is required to prove that the noose was displayed “in a manner having a direct

tendency to place another person in reasonable fear or apprehension of death or bodily injury.”

Because of this added element, we hold that the scope of Code § 18.2-423.2 only encompasses

the exhibition of a noose that represents a “true threat.” See Black, 538 U.S. at 360.

“Intimidation” rises to the level of a “true threat” in cases where, as here, the person

communicating the threat “directs [the] threat to a person or group of persons with the intent of

placing the victim in fear of bodily harm or death.” Id. Thus, pursuant to Black, we hold that

displaying a noose in the manner Code § 18.2-423.2 proscribes constitutes a “true threat,” and,

like cross burning, it is undeserving of First Amendment protection. Considering the evidence

presented at trial in the light most favorable to the Commonwealth, Turner intended to intimidate

others via his noose display. In short, while the First Amendment protects Turner’s right to be a

racist and even to convey his racist beliefs to others, the protections of our Constitution do not

permit him to threaten or intimidate others who do not share his views. Therefore, when his

“speech” took the form of actions intended to threaten, intimidate or place others in reasonable

fear of bodily harm, his symbolic “speech” was not entitled to constitutional protection.

With regard to Turner’s second assignment of error in which he argues that he had an

absolute right under the First Amendment to use symbolic or offensive conduct however

reprehensible or offensive and with the intent to intimidate if he did so upon his own property,

we conclude that he has procedurally defaulted that issue. Pursuant to Rule 5A:20(e), an

appellant’s opening brief must contain “[t]he principles of law, the argument, and the authorities

- 11 -

20a

relating to each question presented.” “Statements unsupported by argument, authority, or

citations to the record do not merit appellate consideration. We will not . . . correct deficiencies

in a brief.” Buchanan v. Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). Turner

failed to cite any authority whatsoever in support of his argument that the First Amendment

offers blanket protection for threats made on his private property, thus he failed to comply with

the provisions of Rule 5A:20(e), and we will not consider his arguments on appeal. Moreover, in

concluding that the First Amendment does not offer the sort of blanket protection that Turner

seeks, Justice Holmes famously observed in Schenk v. United States, 249 U.S. 47 (1919), that

falsely shouting “fire” in a crowded theater is not protected speech under the First Amendment

and we can think of no principled constitutional reason why that should change if you happen to

own the theater and Turner has offered none.

C. Public Place: Code § 18.2-423.2

The meaning of the words “public place,” in the context of Code § 18.2-423.2, is a

question of first impression in the Commonwealth.8 Code § 18.2-423.2(B) prohibits displaying a

noose “on a highway or other public place.” (Emphasis added). Turner alternatively argues that

his conviction should be overturned because Code § 18.2-423.2 “does not ban the conduct

complained of . . . as it occurred solely on Turner’s property” and therefore not in a “public

place.” Further, Turner argues that the circuit court’s “finding that [his] property was a public

place is erroneous and not supported by even the most expansive definition of public property.”

8

Code § 4.1-100 defines “public place,” as “any place, building, or conveyance to which

the public has, or is permitted to have, access, including restaurants, soda fountains, hotel dining

areas, lobbies, and corridors of hotels, and any highway, street, lane, park, or place of public

resort or amusement.” However, “Code § 4.1-100 limits its definitions of terms, including

‘public place,’ to Title 4.1, applying the provisions of the Alcoholic Beverage Control Act.

There is no nexus in statute or case law between the provisions of Titles 4.1 and 18.2 to

substantiate the argument to transmorph the definition of non-identical terms in one to the other.”

Crislip, 37 Va. App. at 70, 554 S.E.2d at 98.

- 12 -

21a

When interpreting and applying a statute, this Court assumes “that the General Assembly

chose, with care, the words it used in enacting the statute, and we are bound by those words.”

PKO Ventures, LLC v. Norfolk Redevelopment & Hous. Auth., 286 Va. 174, 183, 747 S.E.2d

826, 831 (2013). “Moreover, when the General Assembly has used specific language in one

instance, but omits that language or uses different language when addressing a similar subject

elsewhere in the Code,” a reviewing court “must presume that the difference in the choice of

language was intentional.” Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va. 330, 337, 714

S.E.2d 922, 925 (2011). Here, the General Assembly used the word “property” in subsection

(A), and “place” in subsection (B). Code § 18.2-423.2. Accordingly, we “must presume” that

the General Assembly meant something other than public property when it proscribed the

displaying of a noose in a “public place” in subsection (B). Zinone, 282 Va. at 337, 714 S.E.2d

at 925; Code § 18.2-423.2(B) (emphasis added).

“The primary objective of statutory construction is to ascertain and give effect to

legislative intent. The plain, obvious, and rational meaning of a statute is to be preferred over

any curious, narrow, or strained construction.” Commonwealth v. Zamani, 256 Va. 391, 395,

507 S.E.2d 608, 609 (1998). A common dictionary definition of the word “public” is “a place

accessible or visible to all members of the community.” Webster’s Third New International

Dictionary 1836 (3d ed. 1993) (emphasis added). The same dictionary defines the word “place”

as “physical environment” or “physical surroundings.” Id. at 1727. Black’s Law Dictionary

defines “public place” as “[a]ny location that the local, state, or national government maintains

for the use of the public, such as a highway, park, or public building.” Public Place, Black’s

Law Dictionary (10th ed. 2014). These definitions alone do not provide much guidance.

Yet, while the definition of “public place” may be a case of first impression under the

current Code, the Supreme Court of Virginia previously defined the term in Hackney v.

- 13 -

22a

Commonwealth, 186 Va. 888, 45 S.E.2d 241 (1947), in the context of the Code of Virginia then

in effect. In Hackney, the Supreme Court decided “whether loud, boisterous, vile and abusive

language uttered by a man standing on his porch to a person passing along the highway within

thirty feet of the speaker constitutes disorderly conduct within the meaning of chapter 296 of the

Acts of 1946.” Id. at 889-90, 45 S.E.2d at 241-42. The Court held that it did. In doing so, the

Supreme Court provided us a framework of how to define “on a highway or other public place”

because it had to determine the meaning of the phrase within the Code section at the time, “[i]f

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. at 890, 45 S.E.2d at 242

(emphasis added).

As we have done here, the Hackney Court began its analysis with the commonly

understood definition:

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. Then, the Court reasoned that

[t]he use of offensive language on one’s own premises does not

constitute a violation of . . . Penal Law unless that person

communicates it to the public; for example, shouts offensive

language from a window on a public street and thus annoys and

disturbs some person or persons who are within hearing of the

voice.

Id. at 893, 45 S.E.2d at 243 (emphasis added). Extrapolating from the language in Hackney, we

hold that the use of offensive language by use of a symbol on one’s own premises constitutes a

- 14 -

23a

violation of the law when that symbol is used as a means to communicate it to the public, and

thus disturbs persons who are within the viewpoint of the communication, display, or message.

In the case at bar, we conclude that the General Assembly’s purpose in enacting the

noose statute is to prohibit people from displaying nooses to communicate “true threats” as

defined in Black. A “prohibition on true threats protects individuals from fear of violence and

from the disruption that fear engenders, in addition to protecting people from the possibility that

the threatened violence will occur.” Black, 538 U.S. at 360. We conclude that using the

definition for “public place” endorsed in Hackney to define the phrase in Virginia’s noose statute

furthers the General Assembly’s purpose in prohibiting the display of nooses where such display

is accompanied by the intent to intimidate and conducted in a manner having a direct tendency to

place people in reasonable fear of death or bodily injury. Thus, we adopt the definition for the

term “public place” that gives effect to this legislative intent as announced in Hackney.

It is without doubt that the location of the noose and dummy in Turner’s front yard—

where it was “clearly visible” from the street—qualifies as a “public place” under the definition

in Hackney. The facts, taken in the light most favorable to the Commonwealth, demonstrate that

Turner admitted to Captain Caldwell that the noose and dummy were utilized as a “scarecrow”

meant to “scare people away.” Witcher and the Mitchells testified that the noose and dummy

were “very visible” and “clearly visible” to them from the street, and were hanging in “plain

sight” where you “couldn’t miss it if you tried.” Moreover, when Witcher and the Mitchells saw

the noose display, they feared for their safety and for the safety of their families.

III. Conclusion

As Justice Robert Jackson reminded us, “the very essence of constitutional freedom of

press and of speech is to allow more liberty than the good citizen will take. The test of its

vitality is whether we will suffer and protect much that we think false, mischievous and bad, both

- 15 -

24a

in taste and intent.” Williamson v. United States, 184 F.2d 280, 283 (2d Cir. 1950). A

constitutional limit to that allowance has been reached when an idea becomes a threat that causes

reasonable people to fear leaving their homes.

For all of these reasons, we conclude that Code §18.2-423.2 is constitutional as applied in

this case and further that the evidence was sufficient to support the circuit court’s conclusion that

the offense occurred in a public place. Under circumstances in this case the use of an

intimidating and threatening display on one’s own premises constituted a violation of the law

because Turner displayed a noose and dummy in a place and manner to communicate threats to

others with the intent to place members of the public in fear of violence and bodily harm. We

therefore affirm the judgment of the circuit court convicting Turner of displaying a noose

with the intent to intimidate, in violation of Code § 18.2-423.2.

Affirmed.

- 16 -

25a

·, .'

c

(

SENTENCING ORDER

VIRGINIA: IN THE CIRCUIT COURT OF FRANKLIN

FEDERAL INFORMATION PROCESSING

STANDARDS CODE: 067C

Hearing Date: DECEMBER 8, 2015

Judge: A. JOSEPH CANADA, JR.

COMMONWEALTH OF VIRGINIA

v . ..::J~AC=.:K:.:..E=:;U::..:G::..:E::.N:.=E:....:T-=U.:...:R::..:.N=:;ER~_ _ _ _ _ _ _ _---" Defendant

This case came before the Court for sentencing of the defendant, who appeared in person with his

attorney, C HOLLAND PERDUE, III, APPOINTED

The Commonwealth was represented by .::D~W.:...:I.::G.:...:H..:.T....;:G:.:..,,;..:R.:;U.::.D.::.D_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

On SEPTEMBER 22, 2015

Offense Tracking

Number

the defendant was found guilty of the following offenses:

Virginia Crime Code

Code Section

(For Administralive Use Only)

VIO·5339·F6

067GM1500003679

Offense Dale: 06117/2015

18.2-423.2

DescrIDtlon:NOOSE:DISPLAY ·PUBLlC·INTIMID8

Offense Date:

Description:

Offense Dale:

Description:

Offense Dale:

Description:

Offense Dale:

Description:

Offense Dale:

Description:

Offense Date:

Description:

Offense Date:

Description:

Case Number

CR15057315·00

FELONY

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Offense Date:

Description:

Offense Dote:

Description:

Offense Dote:

Description:

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[X] The presentence report was considered and is ordered filed as a part of the record in this case in accordance

with the provisions of Code § 19.2-299.

[ ] No presentend'report was ordered.

Pursuant to the provisions of Code § 19.2-298.01, the Court has considered and reviewed the applicable

discretionary sentencing guidelines and the guidelines worksheets. The sentencing guidelines worksheets and

the written explanation of any departure from the guidelines are ordered filed as a part of the record in this case.

Before pronouncing the sentence, the Court inquired if the defendant desired to make .a statement and if the

\lo

defendant desired to advance any reason why judgment should not be pronounced.

l~l \4CArJ

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-6Mdz')

FORM CC-1393 MASTER 7{07

Page 1 of 4

;?1

26a

/ - ..

C6MMONWEALTH OF VIRGnC-'~ v. .=:.JA. !.:C:.!.K:. : E~U:. ;:G:.:E:!. .!N.:.E. . :. .TU: :. :R~N. :. :E:.:. R:. . .-_ _ _(··_·_ _ _ _ _--J,Defendant

The court SENTENCES the defendant to:

Case No.,_ _...;:C.:...R..:;.1.:...50...;:5.:...73.:...1...;:5-,.O..:;.O_ _

Description NOOSE:DISPLAY·PUBLlC-INTIMID8

[X] Incarceration with the Virginia Department of Corrections for the term of: _5_ years

months _ _ days

[ ] FINE.

The defendant is ordered to pay fine(s) in the amount of $_ _ _ _ _ _.

[ ] COSTS. The defendant is ordered to pay all costs of this case.

[ ] RESTITUTION. The defendant is ordered to make restitution in the amount of$_ _ _ _ _ _as set forth below.

[ ] DRIVER'S LICENSE SUSPENSION: The defendant's driver'S license has been suspended

[] indefinitely.

[ ] for a period of __ years __ months _ _ days

[ ] RESTRICTED DRIVER'S LICENSE: A restricted driver's license was issued by separate order.

[x] The court SUSPENDS _4_ years _6_ months _ _ days of incarceration

fine

INDEFINITELY

upon the condition(s) specified in Suspended Sentence Conditions.

Description _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Case No. '

[ ] Incarceration with the Virginia Department of Corrections for the term of: _ _ years

months _ _ days

[ ] FINE.

The defendant is ordered to pay fine(s) in the amount of $_ _ _ _ _ _.

[ ] COSTS. The defendant is ordered to pay all costs of this case.

( ] RESTITUTION. The defendant is ordered to make restitution in the amount of$

as set forth below.

( ] DRIVER'S LICENSE SUSPENSION: The defendant's driver's license has been suspended.

( ] for a period of _ _ years __ months _ _ days

[] indefinitely.

[ ] RESTRICTED DRIVER'S LICENSE: A restricted driver's license was issued by separate order.

fine

[ ] The court SUSPENDS _ _ years __ months _ _ days of incarceration

upon the condition(s) specified in Suspended Sentence Conditions.

for a period of

Case No.

Description _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

[ ] Incarceration with the Virginia Department of Corrections for the term of: _ _ years _ _months _ _ days

[ ] FINE.

The defendant is ordered to pay fine(s) in the amount of $._ _ _ _ __

[ ] COSTS.

The defendant is ordered to pay all costs ofthis case.

[ ] RESTITUTION. The defendant is ordered to make restitution in the amount of$

as set forth below.

[ ] DRIVER'S LICENSE SUSPENSION: The defendant's driver's license has been suspended.

[ ] for a period of _ _ years __ months _ _ days

[] indefinitely.

[ ] RESTRICTED DRIVER'S LICENSE: A restricted driver's license was issued by separate order.

fine

[ ] The court SUSPENDS _ _ years __. months _ _ days of incarceration

upon the condition(s) specified in Suspended Seritence Conditions.

for a period of ' .

Page 2 of 4

FORM CC-\393 MASTER 7/08

27a

COMMONWEALTH OF VIRGINIA

C" JACK EUGENE TURNER

(

, Defendant

~~~~~~~~~---------------------'

Consecutive/concurrent:

IX) These sentences shall run consecutively with all other sentences.

[ ] These sentences shall run concurrently with all other sentences.

[ ] These sentences shall run consecutively/concurrently as described:

Suspended Sentence Conditions:

[X] Good Behavior: The defendant shall be of good behavior . INDEFINITELY

[ ] from the defendant's

release from confinement [x] .:..F..:..R:..::O:..:..:M::...D:.E::;C~E::M.:.:.B:::.:E::Rc..!...:::.8!!....:2:.=O:.!.15:::....-__________________________

[X] Supervised Probation: The defendant is placed on probation under the supervision of a Probation Officer

to commence [] upon sentencing

lX.I upon release from incarceration

for _ _ years _ _ months _ _ days [X] indefinite or unless sooner released by the court or by the

Probation Officer. The defendant shall comply with all the rules and requirements set by the Probation

Officer. Probation shall include substance abuse counseling and/or testing as prescribed by the Probation

Officer.

] Community-Based Corrections System Program pursuant to Virginia Code § 19.2-316.2 or 19.2-316.3:

The defendant shall successfully complete the _-:--':":"'":"'--:::-:-:-__-:-:____--:--:---=-=__---:____.,---:--______

program. Successful completion of the program shall be followed by a period of intensive probation

of

.

, followed by a period of supervised probation

of ___________________________________

[ ] The defendant shall remain in custody until program entry.

] Registration pursuant to Code § 9.1-903 for offenses defined in § 9.1-902 is required.

[X] The defendant shall provide a DNA sample and legible fingerprints as directed.

[ ] Special conditions:

[ ] The defendant shall make restitution as follows:

$

00 _______________________________________________

for case number(s):

$

00 ___------------------------------------------

for case number(s):

00 ________________________________

$

for case number(s):

$

00 _________________________________________________

for case number(s):

FORMCC·1393 MASTERS/OS

Page 3 of 4

~q

28a

,"

,..... .

.

(

{

' "

COMMONWEALTH OF VIRGINIA \,.. -=J=-:.AC::;.:K~EU:::.;G:::;E:::..N.:.:E:....:T~U;.:..:R::..:N=ER~_ _ _ _ _ _ _ _ _ _I' Defendant

Post-incarceration supervision following felony conviction pursuant to Virginia Code § 18.2-10 and 19.2-295.2:

[ ] Post-Incarceration Supervised Probation: The defendant is placed on supervised probation to commence

• unless released earlier by the

upon release from incarperation for a period of

court. The defendant shall comply with all the rules and requirements set by the Probation Officer.

[ ] Post-Incarceration Post-Release Supervision: In addition to the above sentence of incarceration, the court

imposes an additional term of

of incarceration. This term is suspended and

• is imposed which is to commence

a period of post-release supervision of

upon release from incarceration.The defendant shall comply with all the rules and requirements set by the

Probation Officer.

[><] AFTER PRONOUNCING SENTENCE, THE COURT ADVISED THE DEFENDANT OF THE RIGHT TO PETITION FOR AN

APPEAL TO THE COURT OF APPEALS OF VIRGINIA, AND OF THE RIGHT TO PROCEED IN FORMA PAUPERIS, AND

TO HAVE THE ASSISTANCE OF COURT-APPOINTED COUNSEL. THE COURT APPOINTED C. HOLLAND PERDUE, III

TO REPRESENT THE DEFENDANT IF AN APPEAL IS PURSUED.

.

[X] The defendant was remanded to the custody of the sheriff.

[] The defendant was allowed to depart.

The defendant shall be given credit for time spent in confinement while awaiting trial pursuant to Virginia

Code § 53.1-187.

ENTERthis~~day

~"~I:"'

,

ge

DEFENDANT IDENTIFICATION:

Name: JACK EUGENE TURNER

Alias: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

SSN: 234-11-6561

DeB: .J~_J_~.J 1963

Sex: ~

SENTENCESU~ARY:

Total Incarceration Sentence Imposed: ...:5~Y:..:E;;.:,~.=..:.:S=---_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Total Sentence Suspended:

4 YEARS 6 MONTHS

INDEFINITE

Total Supervised Probation Term:

Total Postrelease Term Imposed and Suspended:

Total Fine Imposed $ .00

• Total Fine Suspended $....:...0;:....:0'--_ _ __

FOR CLERK'S USE ONLY:

[ ] Conviction reported to applicable Board _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~, Clerk

.. •.. •..•.. •• ..·DATE.... •............

FORM CC-1393 MASTER 1/09

By: _ _ _ _ _ _ _ _ _ _ _ _ _ _~, Deputy Clerk

Page 4 of 4

30

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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