Chow v. State

BARBERA, Judge. This appeal requires us to consider the scope of conduct the General Assembly sought to prohibit by its enactment of ⁴⁹⁶ Maryland Code (1957, 1996 Repl. Vol., 2002 Supp.), Art. 27, § 442(d). This subsection makes it unlawful for a person, who is not a regulated gun dealer, to “sell, rent, transfer, or purchase any regulated firearm” until seven days after submission by the prospective purchaser or transferee of an application to purchase or transfer the firearm.

We are asked to decide in particular whether the verb “transfer,” as it is used in this subsection, includes a temporary exchange — a loan — of a firearm by its owner to another person. For the reasons we shall explain, we hold that it does. I. The statutory provisions at issue in this case are found within then Article 27, §§ 441 et seq. of the Maryland Code, the “Regulated Firearms” subheading. Specifically at issue are §§ 442(d) and 449(f) of the subheading. 1 Section 442(d) provides: Sale by other than regulated firearms dealer. — (1) A person who is not a regulated firearms dealer may not sell, rent, transfer, or purchase any regulated firearm until after 7 days shall have elapsed from the time an application to purchase or transfer shall have been executed by the prospective purchaser or transferee, in triplicate, and the original copy is forwarded by a regulated firearms dealer to the Secretary.

(Emphasis added.) Section 449(f) establishes the penalty for violation of § 442(d) and provides: ⁴⁹⁷ Knowing participants in sale, rental, etc. — Except as otherwise provided in this section, any dealer or person who knowingly participates in the illegal sale, rental, transfer, purchase, possession, or receipt of a regulated firearm in violation of this subheading shall be guilty of a misdemeanor and upon conviction shall be fined not more than $10,000 or imprisoned for not more that 5 years, or both.... Appellant, Todd Lin Chow, a District of Columbia Metropolitan Police Department officer, was tried at a court trial in the Circuit Court for Prince George’s County, on charges that he violated § 442(d) for having transferred a gun he owned by lending it to a friend. Over appellant’s objection that § 442(d) does not proscribe this conduct because it does not come within the meaning of the term “transfer,” the court found him guilty. Appellant’s friend, Man Nguyen, was the State’s main witness at trial.

Nguyen testified that, while driving his car on April 1, 2003, he was stopped by the Prince George’s County Police Department for a broken taillight. At that time, the police searched Nguyen’s vehicle, and discovered a Glock semi-automatic pistol (not the weapon that is the subject of this appeal). The pistol was properly registered in Nguyen’s name, but he did not have a permit to carry it. The police confiscated it in connection with their investigation of a recent murder of one of Nguyen’s friends.

The following day, Nguyen contacted appellant. Nguyen explained to appellant that this gun and other guns at his home had been confiscated by the police, and he was “anxious” to buy another gun. He told appellant that he needed to purchase a gun for protection, by which he meant “[hjome security,” “[s]o, [appellant] offered me his gun.” The two men arranged to meet later that day for lunch at a restaurant in Bowie, Maryland. Sometime during this meeting, appellant gave Nguyen a nine millimeter, semi-automatic handgun that he had owned since 1996.

Nguyen told appellant that he wanted to test fire the weapon before purchasing it. The pair got into Nguyen’s ⁴⁹⁸ vehicle and headed to a firing range in Upper Marlboro. En route, Nguyen received a business call on his cellular telephone, requiring that he abort the trip to the firing range. 2 Nguyen drove appellant back to the restaurant where appellant’s car was parked and dropped him off. Appellant’s weapon remained in Nguyen’s car.

No money was exchanged between Nguyen and appellant. Soon thereafter, Nguyen contacted appellant by telephone. Nguyen testified: “I was interested in buying it and I called him, and, you know, I told him I’d give it back to him but he said, that’s cool, just keep it in the house and he’ll pick it up.” Nguyen further testified that he anticipated the weapon would be returned to appellant “as soon as possible.” Detective Donnie Judd testified as a State’s witness. He reported that, on April 4, 2003, he and other members of the Prince George’s County Police Department stopped Nguyen on a warrant to arrest him for having illegally carried the gun that was found in his car three days earlier.

In the ensuing search of Nguyen’s car, the police discovered appellant’s loaded handgun in the car’s center console. Detective Judd ran an NCIC 3 check and determined that the handgun had not been reported stolen. The gun was test fired and determined to be operable. Nguyen was arrested and taken to the police station, where he gave a four-page statement.

The first paragraph of the statement addressed how he had obtained appellant’s handgun, and that portion of the statement was admitted into evidence. It varied from Nguyen’s trial testimony. Nguyen wrote: I know [sic] [appellant] for 2-3 [years]. I was detain [sic] on 4-1-03 and PGPD took all my guns.

Next [d]ay, I called ⁴⁹⁹ [appellant] and asked him if I could hold on to his gun until I can get my guns back in a week or two because I felt uncomfortable without a gun[.] We then met at Olive Garden att [sic] 4pm in Bowie and had lunch and after that he give [sic] me his 9mm, out of a bag in the front Passengers [sic] seat[.] Sergeant William Szimanski, of the State Police Licensing Division, Firearms Registration Section, performs background checks on persons purchasing regulated firearms in Maryland and deals with records concerning firearms purchases. He testified that the records related to appellant’s handgun reflect that appellant bought the handgun in November 1996, and it was formally transferred to him on the 27th of that month, after completion of the weapon registration process. The records show no subsequent transfer of the handgun, and no application for a transfer of the gun from appellant to Nguyen. Sergeant Guillermo Rivera, of the Office of Internal Affairs of the District of Columbia Metropolitan Police Department, also testified.

He stated that appellant had not filed a stolen weapon report between November 17, 2001 and November 17, 2003. At the close of the State’s case, appellant made a motion for judgment of acquittal. Appellant argued that § 442(d) does not cover his conduct, which was simply a temporary exchange of the handgun. In the alternative, appellant argued that he did not “knowingly” violate the statute, as required by § 449(f), because the State did not prove that he knew the transferee, Nguyen, had not filed the application required by § 442(d).

The State countered that appellant’s leaving the gun with Nguyen was a “transfer” of it, and therefore was covered by § 442(d). The State further argued that appellant was aware of the requirements for transferring a handgun, because he had fulfilled those requirements himself when he purchased the gun in 1996. The State finally argued that the “plain meaning” of transfer does not necessarily include the conveyance of title, and encompasses a mere loan. ⁵⁰⁰ After hearing from counsel on both issues, the court denied the motion. Appellant then rested without putting on any evidence, and the court issued its ruling: The Court having reviewed the statute and now the burden is on the State to prove beyond a reasonable doubt, the Court finds based upon the testimony of the State’s witnesses that there was in fact a transfer in this case.

The Court also finds that based upon the facts that it was a temporary transfer. It is the Court’s assessment of the testimony of the State’s witness that it was in fact a loan, although he has testified to two totally opposite things; he testified that it was in fact an anticipated purchase, and on the other hand, there was testimony or at least — yeah, there was testimony that it was in fact a loan. So, we have two inconsistent statements by the State’s witness. And the State asks the Court or states to the Court— argues to the Court that under either theory, that there was an illegal transfer in this case.

The Court agrees that there was an illegal transfer. The court then found appellant guilty of the charge and proceeded immediately to sentencing. The court imposed a $200.00 fine and a 60-day suspended sentence. On appeal, appellant challenges the court’s interpretation of § 442(d) and its finding that he “knowingly” violated it.

II

Appellant’s first question is a purely legal one: What is meant by the word “transfer” in the phrase in § 442(d) that makes it unlawful for a person to “sell, rent, transfer or purchase” a regulated firearm without there first being compliance with the required application process? Appellant takes the position that the term does not contemplate a loan of a regulated firearm. Without directly stating what he believes the term means, he seems to argue that “transfer” must mean “gift,” i.e., something that is not a sale or rental, and also is not a loan. The State disagrees, arguing that, by its ⁵⁰¹ plain terms, § 442(d) prohibits all exchanges of regulated firearms: sales, rentals, and other transfers that are made without consideration, including both gifts and loans.

In deciding which position is correct, we must engage in statutory construction, the chief goal of which is to ascertain the actual intent of the Legislature when it enacted the statute. See, e.g., Pete v. State, 384 Md. 47, 57 , 862 A.2d 419 (2004). We begin our analysis by examining the plain language of the statute. Hackley v. State, 161 Md.App. 1, 11 , 866 A.2d 906 (2005). “In fact, all statutory interpretation begins, and usually ends, with the statutory text itself, for the legislative intent of a statute primarily reveals itself through the statute’s very words.” Price v. State, 378 Md. 378, 387 , 835 A.2d 1221 (2003) (citations omitted). “ ‘We view the words of a statute in ordinary terms, in their natural meaning, in the manner in which they are most commonly understood.’ ” Hackley, 161 Md.App. at 11 , 866 A.2d 906 (quoting Gillespie v. State, 370 Md. 219, 222 , 804 A.2d 426 (2002)).

And we are cautioned not to add or delete language in a way that reflects an intent not reflected by the plain and unambiguous language of the statute. Price, 378 Md. at 387 , 835 A.2d 1221 . “[N]or may [we] construe the statute with forced or subtle interpretations that limit or extend its application.” Id. “ ‘If the words of a statute are clear and unambiguous, our inquiry ordinarily ends and we need investigate no further, but simply apply the statute as it reads.’ ” Hackley, 161 Md.App. at 11 , 866 A.2d 906 (quoting Gillespie, 370 Md. at 222 , 804 A.2d 426 ). Only when the statutory text is ambiguous do we resort to the rules of statutory construction. The Court of Appeals reemphasized this as recently as several months ago, in Pete : “In some cases, the statutory text reveals ambiguity, and then the job of this Court is to resolve that ambiguity in light of the legislative intent, using all the resources and tools of statutory construction at our disposal.

However, before judges may look to other sources for interpretation, first there must exist an ambiguity within the statute, i.e., two or more reasonable alternative interpretations of the ⁵⁰² statute. Where the statutory language is free from such ambiguity, courts will neither look beyond the words of the statute itself to determine legislative intent nor add to or delete words from the statute. Only when faced with ambiguity will courts consider both the literal or unusual meaning of the words as well as their meaning in light of the objectives and purposes of the enactment.” 384 Md. at 58 , 862 A.2d 419 (quoting Price, 378 Md. at 387-88 , 835 A.2d 1221 (citations omitted)). We bear these principles in mind as we turn to the statutory provision at issue in this case.

As we have mentioned, § 442 is part of the “Regulated Firearms” subheading of Article 27. Neither § 442 nor any other section within that subheading defines the word “transfer.” Nonetheless, “[ojrdinary and popular understanding of the English language dictates interpretation of terminology within legislation.” Deville v. State, 383 Md. 217, 223 , 858 A.2d 484 (2004). Consequently, “[w]e may consult a dictionary to discern the generally understood meaning of a word.” Hackley, 161 Md.App. at 14 , 866 A.2d 906 . The first definition of the verb “transfer” in The Random House Dictionary of the English Language is “to convey or remove from one place, person, etc., to another[.]” The Random House Dictionary of the English Language, Unabridged 2009 (2nd ed. 1987) (“Random House”).

A similar first definition of the verb “transfer” is found in Black’s Law Dictionary: “To convey or remove from one place or one person to another; to pass or hand over from one to another, esp. to change over the possession or control of.” Black’s Law Dictionary 1536 (8th ed. 2004) (“Black’s”). These definitions are broad and both include a loan of the property at issue. To be sure, other subsequently listed dictionary definitions of the verb “transfer” are more in keeping with the construction given to it by appellant. Random House includes as the third definition of the verb: “Law. to make over the possession or control of: to transfer a title to land.” Random House, ⁵⁰³ supra, at 2009.

And Black’s lists, as its second definition, “To sell or give.” Black’ s, supra, at 1536 . Similarly, Random House defines the noun form of the word “transfer” as, inter alia, “Law. a conveyance, by sale, gift, or otherwise, of real or personal property, to another.” Random House, supra, at 2009. And “conveyance” is defined, inter alia, as “Law. a. the transfer of property from one person to another.” Id. at 445. We nevertheless decline appellant’s invitation to ascribe to the verb “transfer,” in § 442(d), a definition suggestive only of a permanent exchange of title or possession.

There are several reasons why such a definition is inappropriate. First, it would run afoul of the rule that “[o]rdinary and popular understanding of the English language dictates interpretation of terminology within legislation.” Deville, 383 Md. at 223 , 858 A.2d 484 . Second, the context in which “transfer” appears does not comport with the narrow definition appellant would have us give the word. Section 442(d) refers to three forms of firearm exchange: “sell [or purchase]”, “rent,” and “transfer.” “Rent” is defined in § 441(t) as the “temporary transfer of a regulated firearm for consideration where the firearm is taken from the firearm owner’s property.” “Sell” and “purchase” are not defined in the subheading, but we assume they carry their ordinary and popular meaning, and contemplate a permanent transfer for consideration. “Transfer,” then, must contemplate something different from “sell” or “rent”; otherwise, those terms would be surplusage.

We strive to “read statutes ‘so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory.’ ” See State v. Pagano, 341 Md. 129, 134 , 669 A.2d 1339 (1996) (quoting Montgomery County v. Buckman, 333 Md. 516, 524 , 636 A.2d 448 (1994)). Third, in context, “transfer” cannot simply mean “gift.” Elsewhere in § 442 itself, the General Assembly used “gift” to exclude (with certain conditions) those forms of exchange from the prohibitions against straw purchases. See § 442(b)(2), (3) (providing that “[t]he prohibitions of this [straw purchase] ⁵⁰⁴ subsection do not apply to a person purchasing a regulated firearm as a gift,” so long as there is compliance with the application requirement). Had the General Assembly intended to limit its meaning of the verb “transfer” in § 442(d) to making a gift, we expect that the Legislature would have used that word.

If transferring a regulated firearm is not limited to making a gift of the regulated firearm, as we have concluded it cannot be, then “transfer” has a broader meaning that includes (even if not limited to) both the permanent exchange of title of the property without consideration (gift), and the temporary exchange of possession without consideration (loan). That “transfer” includes, at the least, both gifts and loans is bolstered by the General Assembly’s reference to “temporary transfer” elsewhere in the firearms subheading. We have noted that rent is defined, in § 441(t), as a form of “temporary transfer.” The same phrase is repeated in § 445(e)(2)(i), (iv). Those subsections permit the “temporary transfer” of firearms in certain circumstances to persons under 21 years of age.

It can be inferred from the General Assembly’s use of the term “temporary transfer” in the subheading that “transfer,” without its modifier of “temporary,” includes both temporary and permanent transfers. It is also telling that the General Assembly repeated the word “transfer,” in either its verb or noun form, elsewhere in § 442 itself and throughout the subheading, in a manner suggesting that the Legislature intended the word to be interpreted broadly. See, e.g., § 442(b)(3) (referring in general terms to “purchase or transfer a regulated firearm”); § 442(d)(2) (referring to the “prospective seller or transferor” of a regulated firearm); § 445(a) (providing that all restrictions imposed by local laws on “possession or transfers by private parties of regulated firearms are superseded”); § 445(e)(2)(ii) (permitting “[t]he transfer [to a minor] by inheritance of title”). In light of this, we cannot ascribe to the term, as it is used in § 442(d), a narrow meaning restricted essentially to “gift,” without contravening the tenet that the ⁵⁰⁵ Legislature is presumed to have “ ‘intended statutes that affect the same subject matter to blend into a consistent and harmonious body of law.’ ” Pete, 384 Md. at 65 , 862 A.2d 419 (quoting State v. Bricker, 321 Md. 86, 93 , 581 A.2d 9 (1990)).

Appellant declares that, if the General Assembly wanted to include loans in the proscriptions of § 442(d), it knew how to do so. He directs us to the section of the law requiring that every machine gun manufacturer keep a register of all machine guns manufactured or handled by him, including the “date of manufacture, sale, loan, gift, delivery, and reeeipt[.]” 4 Md.Code (2002), § 4-403(a)(2)(ii) of the Criminal Law Article (emphasis added). The General Assembly, for reasons not evident from the legislative history of the Regulated Firearms subheading, has never used the word “loan” to describe firearm exchanges that come within the regulatory purview of that subheading. It does not follow, however, that “transfer” in § 442(d) excludes a loan simply because the General Assembly has chosen to use one term in connection with machine guns, and another in connection with regulated firearms. 5 ⁵⁰⁶ To accept appellant’s proposed construction would mean that all regulated firearms could be freely lent by an owner to another person without complying with the strictures of regulation, but machine guns cannot.

Indeed, a construction of § 442(d) that does not include the loan of a regulated firearm could result in a complete end-run around the statute. The General Assembly could not have intended such an absurd result. We conclude that attributing to the verb “transfer” its ordinary meaning and reading the word in context makes plain the intent of § 442(d). The statute prohibits, among other forms of transfer, a loan of a regulated firearm without there first being compliance with the statute’s requirement of an application and seven-day waiting period.

Finally, we understand that the rules of construction come into play only when a statute or portion of it is ambiguous. See Price, 378 Md. at 388 , 835 A.2d 1221 . Yet, even when it is determined, as it has been here, that a statute is plain, we sometimes, “[i]n the interest of completeness,” examine “the purpose of the statute and compare the result obtained by use of its plain language with that which results when the purpose of the statute is taken into account.” Hackley, 161 Md.App. at 11 , 866 A.2d 906 (quoting Harris v. State, 331 Md. 137, 146 , 626 A.2d 946 (1993)); accord Chilcoat v. ⁵⁰⁷ State, 155 Md.App. 394, 405 , 843 A.2d 240 , cert. denied, 381 Md. 675 , 851 A.2d 594 (2004). Our review of the legislative history of § 442(d) confirms our construction of it.