David Lynn Bolton, Jr. v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
DAVID LYNN BOLTON, JR.
OPINION BY
v. 	Record No. 2306-00-1 	JUDGE JAMES W. BENTON, JR.
AUGUST 7, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Cal T. Bain, Senior Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The sole question raised by this appeal is whether the
evidence was sufficient to prove beyond a reasonable doubt that
David Lynn Bolton, Jr. released a noxious gas, which injured a
person, in violation of Code § 18.2-312. 	We hold that it was, and
we affirm the conviction.
I.
The evidence proved that an employee of a retail store saw
Bolton and another man select several items in the store's
electronic department and put them in shopping carts. 	Bolton and
his companion went to another aisle, where Bolton removed from his
pockets bags marked with the store's logo. 	Bolton transferred the
merchandise from the shopping carts to those bags and walked with

the bags to the front of the store. 	After briefly conversing,
Bolton and his companion walked past clerks at the registers
without paying for the merchandise and exited the front doors.
The employee and a store manager followed and detained Bolton and
his companion on the sidewalk in front of the store, where other
customers were entering and exiting the store. 	There, Bolton
sprayed the manager with a chemical identified as "mace." 	The
substance caused the manager's eyes to burn and water and made the
manager cough.
Bolton's attorney argued in a motion to strike the evidence
that Code § 18.2-312 requires proof the gas was released inside a
"confined space where such a thing might be much more dangerous"
and that the area was not a place contemplated by the statute.
Denying the motion, the trial judge found that the sidewalk in
front of the store was "a part of the place of business" and also
that it was "an area where the public gathers." 	The judge
convicted Bolton of malicious use of a gas in violation of Code
§ 18.2-312. 	This appeal followed.
II.
In pertinent part, Code § 18.2-312 provides as follows:
If any person maliciously release or
cause or procure to be released in any
private home, place of business or place of
public gathering any tear gas, mustard gas,
phosgene gas or other noxious or nauseating
gases or mixtures of chemicals designed to,
and capable of, producing vile or injurious
or nauseating odors or gases, and bodily
injury results to any person from such gas
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or odor, the offending person shall be
guilty of a Class 3 felony.
Bolton does not contest that the evidence proved an injury.
He argues that the sidewalk where the incident occurred is not a
"place of public gathering" or a "place of business." 	Citing
Code § 32.1-198, Bolton contends that the phrase "public
gathering places" has a statutorily defined meaning, which
includes "Historic shrines; . . . Terminals of public
transportation companies; . . . Festivals, fairs, races and
other places where 100 or more people congregate at one time."
Code § 32.1-198. 	He argues that Code § 32.1-198 defines the
phrase "public gathering" as used in Code § 18.2-312 and that
the sidewalk outside the store's entrance is not within the
category of places referenced in Code § 32.1-198. 	We are not
persuaded, however, that the phrase "place of public gathering,"
which is used in Code § 18.2-312, is so limited.
First, we note that the phrases used in the two statutes
are not precisely the same and that those statutes are not
intended to address the same harm or concern. 	"Public gathering
places" is the phrase that is used in a statutory scheme for the
regulation of environmental health services and pertains to the
provision of toilet, sewage, and water supply services. 	See
Code § 32.1-200. 	A "place of public gathering" is the phrasing
in the criminal statute, which is designed to proscribe
dangerous conduct that injures persons. 	Moreover, in the
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environmental health statutes, the legislature qualified the
phrase "public gathering places" by the words "[a]s used in this
article," Code § 32.1-198, and, thus, signaled that it did not
intend a general definition applicable throughout the Code.
Second, the legislature specifically did not place a
definitional limitation on the meaning of "[p]ublic gathering
places" when it used that phrase in the health services statute.
The statute specifies that the phrase, "[a]s used in this
article[,] . . . includes, but is not limited to" to examples
specified in the article. 	Code § 32.1-198. 	Thus, even if the
legislature had intended the two different phrases to be
congruent, the health services statute does not contain an
exclusive definition of the phrase.
Although we construe statutes strictly in criminal cases,
we do not give "an unreasonably restrictive interpretation of
the statute." 	Ansell v. Commonwealth, 219 Va. 759, 761, 250
S.E.2d 760, 761 (1979). 	We must "construe a statute to promote
the end for which it was enacted"; therefore, we should read the
statute "to give reasonable effect to the words used 'and to
promote the ability of the enactment to remedy the mischief at
which it is directed.'" 	Mayhew v. Commonwealth, 20 Va. App.
484, 489, 458 S.E.2d 305, 307 (1995) (citation omitted).
Code § 18.2-312 proscribes the discharge of noxious gases
in a place of public gathering. 	It is beyond dispute that the
nature of noxious gases makes them dangerous if they are
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dispersed in a public setting. 	The plain language of "place of
public gathering" unambiguously denotes an area where people
assemble openly. 	The evidence proved that the sidewalk where
Bolton sprayed the gas was five feet from the store's entrance
and between the store and its parking lot. 	Sidewalks have
traditionally been used for public assembly and are generally
considered a place of public transience. 	Indeed, the evidence
proved customers were entering and exiting the store in the
vicinity where Bolton discharged the gas. 	The vice the statute
clearly was designed to avoid includes the discharge of a
noxious gas in a place of public gathering wherever it may be.
Accordingly, we hold that the evidence proved that the area
where Bolton sprayed the gas was integral to the public's access
to the business and was then occupied by customers. 	It was a
place of public gathering. 	We, therefore, affirm the
conviction.
Affirmed.
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