Orbin Dewayne Bledsoe v. Commonwealth of Virginia ( 2018 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Malveaux
Argued at Salem, Virginia
UNPUBLISHED
ORBIN DEWAYNE BLEDSOE
MEMORANDUM OPINION BY
v. Record No. 1835-16-3 JUDGE ROSSIE D. ALSTON, JR.
JUNE 5, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Clark A. Ritchie, Judge
J. Ryan King (Cook Attorneys, PC, on briefs), for appellant.
John I. Jones, IV, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Orbin Dewayne Bledsoe (appellant) appeals his conviction, arguing that the trial court
erred in denying his motion to strike. Appellant specifically contends that the trial court
incorrectly interpreted the term “highway,” and, consequently, the evidence was insufficient to
sustain a conviction. We disagree with appellant’s contention and find that the evidence was
sufficient to justify the conviction.
BACKGROUND
Officer Ron Jackson (Jackson) is employed as a law enforcement officer for the United
States Department of Agriculture, Forest Service. On April 11, 2015, Jackson was driving on
Road #1279 in the George Washington National Forest, located in the Commonwealth of
Virginia. At approximately 6:30 p.m., Jackson observed a Jeep Cherokee (Jeep) in a campsite.
The campsite could only be entered via the gravel road adjacent to Road #1279. Carsonite posts

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
with a pictograph of a tent were posted beyond the graveled road, indicating that this was a
campsite. The boundaries of the campsite were marked by an earthen berm and wooded forest.
Jackson then noticed the Jeep being driven out of the campsite and onto the gravel road. Jackson
drove toward the campsite and pulled alongside the Jeep; the vehicles faced opposite directions.
Jackson noted that appellant was the driver of the Jeep. Jackson asked appellant if he had his
driver’s license. Appellant stated that he did not. At that point, Jackson exited his vehicle and
approached appellant. As he stood by the driver’s side window, Jackson had a clear view of the
interior of the Jeep; he noticed there were other passengers but that there was no camping
equipment. Jackson then asked appellant if his license was suspended. Appellant admitted it
was and handed Jackson a Virginia identification card. Jackson indicated that when appellant
gave him his Virginia identification card, Jackson suspected, based upon past experiences in law
enforcement and because he was presented an identification card, that appellant’s license was
suspended.
At trial, Jackson testified to the events described above. Jackson testified that there was
an issue with unauthorized motor vehicle traffic in the national forest. Jackson stated that the
Carsonite posts, earthen berm, and gravel road were preventative tools used to combat the issue.
The adjacent road, which operated as the entrance to the campsite, was also graveled to prevent
ruts and erosion. Finally, the Commonwealth introduced appellant’s Department of Motor
Vehicles’ transcript, establishing that appellant was an habitual offender.
At the conclusion of the Commonwealth’s case, appellant made a motion to strike,
arguing that the Commonwealth did not prove that appellant was driving on “a highway of the
Commonwealth.” Although this property is land “owned, leased or controlled by the United
States Government and located in the Commonwealth,” appellant argued that the definition of
“highway” was “the width between the boundary lines of every way or place open to the use of
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the public for purposes of vehicular travel.” In addition, appellant argued that this was not a case
about boundary lines; rather, this was a case about an area that “does not come within the
statutory definition of a way open for the purposes of vehicular travel” because it was a
“campsite.” The Commonwealth replied that the definition of a “highway” on federal land in the
Commonwealth is an area “between the boundary lines of every way or place used for the
purposes of vehicular travel.” The trial court denied appellant’s motion to strike, agreeing with
the Commonwealth’s reading of the statute.
Appellant presented his case in chief, calling Jackson as a witness. The exact location of
the Jeep was disputed, but Jackson remembered that there was gravel at the location where he
came to a stop and began interacting with appellant. The map of the national forest was
admitted, indicating which roads were designated for motor vehicle use. Appellant then called
his private investigator. The private investigator discussed photographs he took of the campsite,
which were admitted into evidence. Based on those photographs, the private investigator
testified that it appeared vehicles had been “driv[en] through that area,” agreed that it looked as
if vehicles drove regularly around the center of the campsite, and saw ruts in that worn path.
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Appellant renewed his motion to strike. He argued that the issue before the trial court
was whether this area is “open to the public for purposes of vehicular travel” and that the
evidence made clear that it was not. During the argument on the appellant’s motion to strike, the
trial court suggested that the case might turn on whether the area in question was used for
vehicular travel. Appellant responded that “the simple operation of motor vehicles certainly does
not indicate that [the area] is open to the public for the purposes of vehicular travel.” The
Commonwealth argued that the issue before the trial court was whether the “area is used for
vehicular travel,” and the evidence showed that vehicles were driven in the campsite regularly.
The trial court denied the motion, stating again that the Commonwealth’s evidence survived a
motion to strike and that the evidence indicated that there “could be off[-]highway vehicle use on
the property.”
The jury convicted appellant of “driving after being declared a habitual offender, second
offense” and recommended a sentence of four years’ imprisonment.
Appellant filed a motion to set aside the verdict, and the Commonwealth responded on
the same grounds before this Court on appeal. The trial court declined to set aside the verdict.
The trial court stated that there was a statute prohibiting habitual offenders from driving on
highways and another statute defining what a “highway” is. The trial court stated that the
question then becomes “[d]id [appellant] . . . operat[e] the vehicle on a highway at that moment
and in the alternative could the jury have found circumstantially that if he was operating a
vehicle at some time before that in the form of actually being on that property at that time.”
The trial court entered its sentencing order which was consistent with the jury’s verdict.
Now comes this appeal.
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ANALYSIS
“We review appellant’s challenge to the trial court’s denial of his motion to strike under
familiar principles. In the context of a jury trial, a trial court does ‘not err in denying [a] motion
to strike the evidence [when] the Commonwealth present[s] a prima facie case for consideration
by the fact finder.’” Vay v. Commonwealth, 67 Va. App. 236, 249, 795 S.E.2d 495, 501 (2017)
(quoting Hawkins v. Commonwealth, 64 Va. App. 650, 657, 770 S.E.2d 787, 790 (2015)).
A motion to strike challenges whether the evidence is sufficient to
submit the case to the jury. What the elements of the offense are is
a question of law that we review de novo. Whether the evidence
adduced is sufficient to prove each of those elements is a factual
finding, which will not be set aside on appeal unless it is plainly
wrong. In reviewing that factual finding, we consider the evidence
in the light most favorable to the Commonwealth and give it the
benefit of all reasonable inferences fairly deducible therefrom.
After so viewing the evidence, the question is whether any rational
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Id. (quoting Linnon v. Commonwealth, 287 Va. 92, 98, 752 S.E.2d 822, 825-26 (2014)).
Questions of statutory interpretation are reviewed de novo. Sarafin v. Commonwealth,
288 Va. 320, 325, 764 S.E.2d 71, 74 (2014) (citing Belew v. Commonwealth, 284 Va. 173, 177,
726 S.E.2d 257, 259 (2012)). “In construing statutes, courts are charged with ascertaining and
giving effect to the intent of the legislature.” Saunders v. Commonwealth, 48 Va. App. 196, 201,
629 S.E.2d 701, 703 (2006) (quoting Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488
S.E.2d 345, 346 (1997)). “That intention is initially found in the words of the statute itself, and
if those words are clear and unambiguous, we do not rely on rules of statutory construction or
parol evidence, unless a literal application would produce a meaningless or absurd result.” Id.
“[T]he provisions should receive a construction that will render it harmonious with that purpose
rather than one which will defeat it.” Esteban v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d
523, 526 (2003).
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First, we consider the text of the statute. Appellant was charged with a violation of Code
§ 46.2-357. That statute states in pertinent part that “[i]t shall be unlawful for any person
determined or adjudicated an habitual offender to drive any motor vehicle or self-propelled
machinery or equipment on the highways of the Commonwealth while the revocation of the
person’s driving privilege remains in effect.” Code § 46.2-357(A). Appellant argues that he was
not driving on a “highway.” The legislature defined the term in Code § 46.2-100. A “highway”
is
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, (i) the entire width between the
boundary lines of all private roads or private streets that have been
specifically 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 and (ii) the entire width between the
boundary lines of every way or place used for purposes of
vehicular travel on any property owned, leased, or controlled by
the United States government and located in the Commonwealth.
Code § 46.2-100 (emphasis added).
Appellant asserts that the location where Jackson observed him driving was not a
“highway.” Appellant contends that a “highway” is “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.” Code § 46.2-100. Thus, according to
appellant, the location where Jackson observed appellant driving was not a “highway” but rather
a “campsite.” Appellant cites Kim v. Commonwealth, 293 Va. 304, 315, 797 S.E.2d 766, 771-72
(2017), to support his interpretation of the statute. There, Kim was found asleep in his vehicle,
which was parked “somewhat diagonally” in a space in a parking lot of an apartment complex.
Id. at 308, 797 S.E.2d at 767. Kim was arrested “on suspicion for drunk driving.” Id. at 308,
797 S.E.2d at 768. He was ultimately convicted of unreasonable refusal to submit a breath
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sample. Id. at 310, 797 S.E.2d at 769. At trial and on appeal, Kim argued that he not was parked
on a “highway.” Id. The specific inquiry before the Virginia Supreme Court was “whether a
particular ‘way’ [fell] within the statutory definition of ‘highway.’” Id. at 312, 797 S.E.2d at
770.
The Virginia Supreme Court turned to its decision in Prillaman v. Commonwealth, 199
Va. 401, 100 S.E.2d 4 (1957), for guidance. In Prillaman, a parking lot of a service station was
found not to be a “highway” because the business owner “could . . . bar the public or any person
from vehicular travel on all or any part of his premises”; “the right of travel by everyone and not
the exercise of that right establishes a way a public highway.” Kim, 293 Va. at 312, 797 S.E.2d
at 770 (quoting Prillaman, 199 Va. at 407-08, 100 S.E.2d at 8-9). Here, as in Kim, the case
turned on the following question: “‘whether the way or place of whatever nature is open to the
use of the public for purposes of vehicular travel.’”1 Id. at 315, 797 S.E.2d at 771 (quoting
Caplan v. Bogard, 264 Va. 219, 227, 563 S.E.2d 719, 724 (2002) (noting that it must be shown
that there is “unrestricted access” to the way)).
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Kim, 293 Va. 304, 797 S.E.2d 766 (finding that the presence of “No Trespassing” signs
at each entrance to an apartment complex and throughout the complex indicated that the area was
not open to the use of the public, and thus not a “highway”); Kay Management Co. v. Creason,
220 Va. 820, 263 S.E.2d 394 (1980) (noting that privately owned and maintained streets of an
apartment complex were “highways” because there was no evidence that the use of or access to
these ways were restricted); Furman v. Call, 234 Va. 437, 362 S.E.2d 709 (1987) (indicating that
a parking area of a condominium office complex was a “highway” even though signs were
posted at each entry which stated “Private Property, No Soliciting”-these signs prohibited
soliciting, not the entry of motor vehicles); Flinchum v. Commonwealth, 24 Va. App. 734,
737-38, 485 S.E.2d 630, 631 (1997) (stating that parking lots of a sporting goods store were not
“highways” because signs on the property stated “No Trespassing,” which does prohibit the entry
of motor vehicles, and the business owners could “bar the public or any person from vehicular
travel on all or any part of [their] premises at will”); Roberts v. Commonwealth, 28 Va. App.
401, 504 S.E.2d 890 (1998) (finding that a parking lot of a convenience store was not a
“highway” because it was known that the store’s manager had the authority to and had
previously asked individuals to leave the premises); Caplan v. Bogard, 264 Va. 219, 228, 563
S.E.2d 719, 724 (2002) (finding that a parking lot of a restaurant was not a “highway”-the record
reflected that there was no physical barrier preventing entry, but this was insufficient to
demonstrate that the public had “free and unrestricted access and use of the roadways”).
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Kim is inapposite. The distinguishing factor in appellant’s case is the particular location
where he was observed to be driving—a national forest located within the Commonwealth.
There is a significant difference between the general definition and the more specific definitions
of “highway” set forth in subparts (i) and (ii) of the statute. The General Assembly appended
subparts (i) and (ii) onto the more general definition of the term using the conjunction “and.”
Because there is no indication that this conjunctive term should be read in the disjunctive, see
Williams v. Commonwealth, 61 Va. App. 1, 10-11, 733 S.E.2d 124, 128 (2012) (quoting S. E.
Pub. Serv. Corp. v. Commonwealth, 165 Va. 116, 122, 181 S.E. 448, 450 (1935)), it is clear that
the General Assembly provided three definitions of “highway”—one general definition and two
specific definitions.2 Code § 46.2-100(i) and (ii). As this location constitutes “any property
owned, leased, or controlled by the United States government and located in the
Commonwealth,” the more specific subpart (ii) definition of “highway” applies. Code
§ 46.2-100(ii). We note “[a] cardinal rule of statutory interpretation is that ‘[w]hen one statute
addresses a subject in a general manner and another addresses a part of the same subject in a
more specific manner, the two statutes should be harmonized, if possible, and when they conflict,
2
The General Assembly amended the definition of “highway” in 2006 by inserting the
content of subpart (ii). See Bill Summary as Introduced, H.B. 496, 2006 Sess., (Va. 2006),
http://lis.virginia.gov/cgi-bin/legp604.exe?061+sum+HB496S. United States v. Slagle, 2015
U.S. Dist. LEXIS 136059 (D. Md. 2015), provides additional insight. Slagle suggests that the
General Assembly amended the definition “in the wake of the Fourth Circuit’s decisions in
Smith and Adams.” Id. at *9. The legislature in Maryland amended the definition of “highway”
to include language similar to Code § 46.2-100(ii) in response to cases citing United States v.
Smith, 395 F.3d 516 (4th Cir. 2005), and United States v. Adams, 426 F.3d 730 (4th Cir. 2005).
Id. at *3. Smith and Adams dealt with individuals on federal lands that were determined not to
be “highways” because they were “not open to the public.” See Smith, 395 F.3d 516 (noting that
an access road in front of the main entrance of CIA headquarters was not a “highway” because
posted signs stated “only CIA employees and those with authorized business may enter CIA
property”), and Adams, 426 F.3d 730 (noting that a gravel road in the Great Dismal Swamp
National Wildlife refuge was not a “highway” because there were signs posted “prohibiting
‘unauthorized entry,’” federal agents patrolled the closed roads, and press releases were issued
noting that the road was closed).
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the more specific statute prevails.’” Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 481,
666 S.E.2d 361, 369 (2008) (quoting All. to Save the Mattaponi v. Commonwealth Dep’t of
Envtl. Quality ex rel. State Water Control Bd., 270 Va. 423, 439-40, 621 S.E.2d 78, 87 (2005)).
“[W]e must presume that the difference in the choice of language was intentional.” Sarafin, 288
Va. at 328, 764 S.E.2d at 76 (quoting Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va.
330, 337, 714 S.E.2d 922, 925 (2011)). Thus, the subpart (ii) definition applies.
Regarding whether the evidence was sufficient, we consider the evidence in the light
most favorable to the Commonwealth. Vay, 67 Va. App. at 249, 795 S.E.2d at 501. We note
that appellant concedes his habitual offender status and that he was driving on a suspended
license. Accordingly, the only element of the offense at issue was whether appellant was driving
on a “highway.” Pursuant to our analysis above, subpart (ii) applies. Accordingly, the
Commonwealth must prove that the “the entire width between the boundary lines of every way
or place [was] used for purposes of vehicular travel on any property owned, leased, or controlled
by the United States government and located in the Commonwealth.” Code § 46.2-100(ii).
Considering the test articulated in Kim, the test regarding whether a way or place on federal land
situated in the Commonwealth is a “highway” is whether the “way or place” is “used for
purposes of vehicular travel.” Code § 46.2-100(ii).
The “way or place” at issue is located on federal land, the George Washington National
Forest, situated within the Commonwealth. Evidence established that the area was “used for
purposes of vehicular travel.” Jackson testified that historically, there was an issue of
unauthorized motor vehicle use in the national forest, explaining the installation of the earthen
berm, Carsonite posts, and graveled access road. Witnesses testified and photographs reflected
that it appeared that motor vehicles were regularly driven around the campsite. There was a
worn path around the center of the campsite riddled with ruts. Jackson observed appellant
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driving his Jeep in the campsite and onto the gravel access road. The Commonwealth’s evidence
was sufficient to prove appellant’s guilt beyond a reasonable doubt.
CONCLUSION
The trial court did not err in denying appellant’s motion to strike. A “highway,” in this
case, is defined pursuant to subpart (ii) of Code § 46.2-100. Accordingly, and in the light most
favorable to the Commonwealth on this appeal, the evidence adduced at trial was sufficient to
prove each of those elements of the offense, and the fact-finder’s finding of guilt was not plainly
wrong.
Affirmed.
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