Carson Ray Shenk v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
CARSON RAY SHENK
OPINION BY
v. Record No. 1165-96-4 JUDGE CHARLES H. DUFF
JUNE 3, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge
Christian J. Griffin, Assistant Public
Defender, for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Carson Ray Shenk (appellant) was convicted of a second
offense of driving after having been adjudicated an habitual
offender. He alleges on appeal that the trial court erred in
refusing to apply the habitual offender statute's "agricultural
purposes" exemption to his operation of a tractor to his home
from a residence where he previously had mowed the lawn. We
disagree and affirm the conviction.
I.
On August 29, 1995, Town of Front Royal Police Sergeant R.E.
Bukva received a report that appellant was operating a lawn
tractor on the streets. Bukva knew that appellant was an
habitual offender. Bukva first saw appellant standing in the
yard of a single family dwelling at the corner of Brown Avenue
and Cherrydale Avenue in Front Royal. The officer saw a lawn
tractor, hooked to a small wagon, parked in front of the
residence. Bukva parked his car where he could watch appellant.
Within minutes, appellant began to drive the tractor on the
street.
Bukva saw appellant make a u-turn with the tractor on Brown
Avenue, then drive to Cherrydale Avenue. The officer drove to
appellant's house on Duncan Avenue and saw appellant drive the
tractor through his yard, toward the street. When appellant saw
Bukva, he put the tractor out of gear, jumped off the tractor,
and ran. The officer could not see where appellant ran. When
Bukva and another officer knocked on the door to appellant's
house, no one answered. Bukva testified that appellant drove the
tractor 300 to 400 yards.
Bukva testified that the area where appellant drove the
tractor is residential, containing single and multi-family
dwellings. Bukva testified that the area contains no farms, and
he did not see even a garden at appellant's residence.
The Commonwealth introduced records which established that
appellant had been adjudicated an habitual offender and
previously had been convicted of driving after having been so
adjudicated. Dean Reynolds testified on behalf of appellant that
appellant had mowed Reynolds' lawn the day before and had
returned on August 29 to retrieve the lawn mower.
At appellant's bench trial, the trial judge found that
appellant drove a tractor on the public highway, that he had been
adjudicated an habitual offender, and that he previously had been
convicted for violating that order of adjudication. The judge
also found that appellant was not moving the tractor from one
tract of land used for agricultural purposes to another tract of
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land used for agricultural purposes. He noted, "According to the
Statute, it is not the nature of the activity at the time but the
nature of the use of the land at the time. What the land is
commonly used for." The judge refused to apply the statutory
exemption.
II.
Code § 46.2-357 provides that it is unlawful for one who has
been adjudicated an habitual offender to drive a motor vehicle or
self-propelled machinery or equipment on the highways during the
pendency of the revocation of his driving privilege. The statute
also provides the following exemption:
However, the revocation determination shall
not prohibit the person from operating any
farm tractor on the highways when it is
necessary to move the tractor from one tract
of land used for agricultural purposes to
another tract of land used for agricultural
purposes, provided that the distance between
the said tracts of land is no more than five
miles.
The parties do not dispute that appellant was operating a
"farm tractor," within the meaning of the statute. 1 Nor do they
contest that appellant operated the vehicle for less than five
miles. Rather, the sole issue before this Court is whether
appellant was moving the tractor from "one tract of land used for
agricultural purposes to another tract of land used for
agricultural purposes."
1
Code § 46.2-100 defines "farm tractor" as "every motor
vehicle designed and used as a farm, agricultural, or
horticultural implement for drawing plows, mowing machines, and
other farm, agricultural, or horticultural machinery and
implements including self-propelled mowers designed and used for
mowing lawns."
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In Newton v. Commonwealth, 21 Va. App. 86, 462 S.E.2d 117
(1995), we held:
Principles of statutory construction mandate
that we "give effect to the legislative
intent." While penal statutes must be
strictly construed against the Commonwealth,
"[t]he plain, obvious, and rational meaning
of a statute is always preferred to any
curious, narrow or strained construction; a
statute should never be construed so that it
leads to absurd results."
Id. at 89, 462 S.E.2d at 119 (citations omitted). Accord Seke v.
Commonwealth, 24 Va. App. 318, 322, 482 S.E.2d 88, 90 (1997).
While the legislature did not define the term "agricultural
purposes" in Title 46.2, we may look to other provisions of the
Code for assistance in defining the term. See Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 425 (1992)
("[b]ecause the Code of Virginia is one body of law, other Code
sections using the same phraseology may be consulted in
determining the meaning of a statute").
Code § 13.1-313, concerning Agricultural Cooperative
Associations, defines "agricultural products" as "livestock and
livestock products, dairy products, poultry and poultry products,
seeds, nuts, ground stock, horticultural, floricultural,
viticultural, forestry, bee and any and all kinds of farm
products." Code § 18.2-121.2, which is entitled, "Trespass by
spotlight on agricultural land," prohibits the willful use of a
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spotlight or similar apparatus to "cast a light upon private
property used for livestock or crops." Moreover, according to
Black's Law Dictionary 68 (6th ed. 1990), "agricultural" pertains
to land where farming is the "leading pursuit."
III.
The evidence in this case established that appellant drove
the tractor in a residential area of the Town of Front Royal.
Sergeant Bukva described the area as consisting of single and
multi-family dwellings. He stated that there were no farms in
the area. The trial judge rejected appellant's argument that his
operation of the tractor
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