Roberts v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Lemons

Argued at Norfolk, Virginia

RON ROBERTS, S/K/A RONALD ROY ROBERTS

OPINION BY

v. Record No. 1940-97-1 JUDGE DONALD W. LEMONS

OCTOBER 6, 1998

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Robert B. Cromwell, Jr., Judge

Catherine L. MacLean, Assistant Public

Defender (Office of the Public Defender, on

brief), for appellant.

Kathleen B. Martin, Assistant Attorney

General (Mark L. Earley, Attorney General, on

brief), for appellee.

Ron Roberts, s/k/a Ronald Roy Roberts, appeals his

conviction of driving after having been adjudicated an habitual

offender. Roberts asserts that the trial court erred in finding

that he operated a motor vehicle on a "highway" as defined by

Code § 46.2-100. We agree and reverse.

FACTUAL BACKGROUND

On October 3, 1995, at approximately 10:45 p.m., Officer

Christopher E. Fox of the City of Virginia Beach Police

Department first encountered Roberts. At the time of the first

encounter, Officer Fox testified that Roberts was a passenger in

a white van that had been stopped because the driver was

suspected of operating a motor vehicle under the influence of

alcohol. Officer Fox testified that Roberts was uncooperative

and appeared unsteady on his feet. The officer warned Roberts

and another passenger that they would be arrested for being drunk

in public unless they went inside, and the two walked into a

house across the street.

Later that evening, at approximately 11:30 p.m., Officer Fox

observed Roberts driving a white van through the parking lot of a

7-Eleven convenience store. When the officer stopped the van,

Roberts was alone in the vehicle. After the officer arrested him

for being drunk in public, he discovered that Roberts had been

adjudicated an habitual offender and that his license to operate

a motor vehicle had been suspended.

Officer Fox testified that he did not see any traffic signs

within the parking lot. The officer also stated that he did not

notice any signs that indicated that access to the area was

restricted in any way. The officer testified that the store

parking lot was accessible to the public by five entrances.

Delvine Ray Claridge, store manager of the 7-Eleven,

testified on behalf of Roberts and stated that Southland

Corporation of Dallas, Texas owned the store and contracted for

the maintenance of the premises, including the parking lot. She

testified that neither the Commonwealth of Virginia nor the City

of Virginia Beach contributed any funds to the maintenance of the

property. Ms. Claridge stated that she was authorized to ask

persons to leave the 7-Eleven property, including the parking

lot. Ms. Claridge testified further that in the past she had

called the police to remove persons from the store premises and

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that such persons were sometimes charged with trespassing. She

stated that no traffic signs existed on the property, other than

a handicapped sign for one parking space.

DEFINITION OF "HIGHWAY" UNDER VIRGINIA CODE

In order to sustain a conviction for driving after having

been adjudicated an habitual offender, the Commonwealth must

prove that a person has driven a motor vehicle "on the highways

of the Commonwealth," after he or she has been adjudicated an

habitual offender and during the period his or her license is

revoked or suspended. Code § 46.2-357. "[T]he test for

determining whether a way is a 'highway' depends upon the degree

to which the way is open to public use for vehicular traffic."

Furman v. Call, 234 Va. 437, 439, 362 S.E.2d 709, 710 (1987)

(citing Kay Management v. Creason, 220 Va. 820, 831-32, 263

S.E.2d 394, 401 (1980)).

In Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4

(1957), the defendant was convicted of driving a motor vehicle at

a time when his license to operate a motor vehicle had been

suspended. At the time of his arrest, the defendant was driving

his vehicle in the parking lot of a service station. The Court

found that unlike public roadways,

[t]he [gas station] premises . . . were

open to the public upon [the owner's]

invitation. The invitation was for private

business purposes and for his benefit. He

had the absolute right at any time to

terminate or limit this invitation. He could

close his doors and bar the public or any

person from vehicular travel on all or any

part of his premises at will. He had

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complete control of their use.

Id. at 407-08, 100 S.E.2d at 8-9. The Court held that because

public access was so restricted, the parking lot of the gas

station did not constitute a highway for purposes of the Motor

Vehicle Code. Id. at 408, 100 S.E.2d at 9.

In Kay Management, 220 Va. at 831-32, 263 S.E.2d at 401-02,

the Court considered whether motor vehicle laws applied to roads

in an apartment complex for purposes of recovery in a personal

injury action. In distinguishing the facts from those in

Prillaman, the Court held that "the evidence of accessibility to

the public for free and unrestricted use gave rise to a prima

facie presumption that the streets of [the apartment complex]

were highways within the definition of [the Virginia Code]." Id.

at 832, 263 S.E.2d at 401. The Court found that the defendant

was unable to rebut this presumption by merely showing that the

tenants had primary access to the property. See id. at 832, 263

S.E.2d at 402. The Court found that the streets were neither

used exclusively by the owners nor limited to those to whom the

owner had granted permission. See id. at 832, 263 S.E.2d at 401.

In Furman, 234 Va. 437, 362 S.E.2d 709, the plaintiff

suffered injuries in the parking lot of an office complex when

her vehicle collided with the defendant's vehicle as both cars

left the lot. Because the statutory rules of the road apply only

to roadways that constitute "highways," the nature of the parking

area was critical to the outcome of the case. In Furman, the

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roads surrounding the parking area "have always been open to the

public 24 hours a day, seven days a week. Access to the public

has never been denied by guards, gates, or any other device."

Id. at 440-41, 362 S.E.2d at 711. The Furman Court found that

even though the lot was posted with signs stating "Private

Property" and "No Soliciting," the lot was a highway within the

statutory definition because public access was "full and

unrestricted." Id. at 441, 362 S.E.2d at 711.

In Flinchum v. Commonwealth, 24 Va. App. 734, 485 S.E.2d 630

(1997), we reversed a defendant's conviction for operating a

motor vehicle after having been adjudicated an habitual offender.

In Flinchum, the arresting officer observed the defendant "doing

doughnuts" in the parking lot of a sporting goods store. The

officer then watched the defendant drive his vehicle from the

sporting goods parking lot into the adjacent parking lot of a car

repair business. The officer never saw the defendant drive his

vehicle onto Route 11, which ran in front of the two stores. See

id. at 735, 485 S.E.2d at 630.

The sporting goods store was privately owned, and public

access was limited to the issuance of an invitation to do

business by the owner. Id. at 737, 485 S.E.2d at 631. No signs

were posted in the parking lot of the sporting goods store,

although a "No Trespassing" sign was located on the property of

the repair shop. Id. at 735, 485 S.E.2d at 630. The Court

considered the definition of a "highway" contained in Code

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§ 46.2-100:

The entire width between the boundary lines

of every way or place open to the use of the

public for purposes of vehicular travel in

the Commonwealth, including the streets and

alleys, and for law enforcement purposes, the

entire width between the boundary lines of

all private roads or private streets which

have been designated "highways" by an

ordinance adopted by the governing body of

the county, city, or town in which such

private roads or streets are located.

Id. at 735-36, 485 S.E.2d at 630-31 (emphasis added). Based upon

the public's restricted access to the parking lot, we found that

the defendant had not been operating his vehicle on a "highway,"

as defined by Code § 46.2-100.

In the matter before us, Officer Fox arrested Roberts after

observing him driving a white van in the parking lot of a

convenience store. Although the officer had seen Roberts earlier

at a DUI traffic stop as the passenger in the same vehicle, he

did not see Roberts operate the vehicle in any area other than

within the 7-Eleven parking lot.

The 7-Eleven parking lot was privately owned property. The

owner of the lot, Southland Corporation, issued an invitation to

do business to the public. Access by the public to the property

was restricted to this invitation. The owner and its employees

retained the right to ask persons to leave the property and to

have trespassers removed by the police. No traffic signs existed

on the parking lot. Based upon the restricted public access to

the premises, the parking lot of the 7-Eleven store was not a

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"highway" as defined by Code § 46.2-100.

To sustain a conviction of driving after having been

adjudged an habitual offender, a person must have operated a

motor vehicle "on the highways of the Commonwealth," during a

period of time in which he or she has been adjudicated an

habitual offender and while his or her license is revoked or

suspended. Code § 46.2-357. The trial court erred in finding

that Roberts was operating a motor vehicle on a "highway" as

defined by Code § 46.2-100. The conviction is reversed.

Reversed and dismissed.

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