Manuel Walston v. County of Arlington , 37 Va. App. 457 ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Annunziata and Humphreys
Argued at Alexandria, Virginia
MANUEL WALSTON
OPINION BY
v. Record No. 1648-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 5, 2002
COUNTY OF ARLINGTON
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Lynndolyn T. Mitchell (Robert L.
Tomlinson II; Tomlinson & Associates, on
brief), for appellant.
Jason L. McCandless, Assistant Commonwealth's
Attorney, for appellee.
Manuel Walston was convicted in a bench trial of failure to
report a towed vehicle in violation of Arlington County Code
§ 14.2-38.2(B). The sole issue on appeal is whether the trial
court erred in denying appellant's motion to strike the evidence
as insufficient. 1 For the following reasons, we affirm
appellant's conviction.
I.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
1
The record in this case does not contain a transcript of
the hearing, and the evidence presented by the parties has been
summarized in a written statement of facts.
fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.
App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on January 22,
2000, at 8:00 a.m. Patrick Timothy Murphy parked his car in a
parking lot adjacent to an open CVS drugstore. He entered the
store, purchased several items and three to four minutes later
returned to the parking lot to find his automobile missing. He
called his wife and asked her to report the "theft" to the
police.
Officer Ahn, of the Arlington County Police Department,
received the complaint at 8:08 a.m. and began to check the
towing companies located on South Jefferson Davis Highway in
Arlington County to see whether the car had been towed. He
located the vehicle and determined that it had been towed by
Manuel Walston of Frank's Towing. Walston told Officer Ahn that
he towed the car because the drugstore did not open until
9:00 a.m. and he had seen Murphy's car in the lot at 7:00 a.m.
Appellant stated that he checked the hood of the vehicle before
he towed it and the hood was cool.
Officer Ahn asked Walston why he failed to call in the tow
to the Arlington police as required. Walston gave the officer
three different versions of the facts surrounding the tow call.
First, he said he had called in the tow but the dispatcher did
not follow up on the information. Next, he stated that he
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called in the tow but the reception was bad. Finally, he
admitted he did not call in the tow because he had no radio.
Appellant presented no additional evidence and moved to
strike the County's case. He argued that: (1) Arlington County
Code § 14.2-38.2(B) placed no duty on a tow truck operator to
give the required notice; (2) there was no evidence establishing
the ownership or control of the parking lot or parking space;
and (3) the Arlington County code section should be strictly
construed against the County.
The trial court denied appellant's motion. It found that
Walston's statements to the police officer proved his agency
relationship to the owner of the property and to the tow
operator. Additionally, the County's evidence established that
appellant recognized his obligation to give notice as required
by the Arlington County Code and that he failed to do so.
II.
In reviewing the sufficiency of the evidence, "the judgment
of the trial court sitting without a jury is entitled to the
same weight as a jury verdict." Saunders v. Commonwealth, 242
Va. 107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944(1991).
"[T]he trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
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Under familiar principles, penal statutes must be strictly
construed against the Commonwealth. Stevenson v. City of Falls
Church, 243 Va. 434, 436, 416 S.E.2d 435, 437 (1992). However,
when statutory construction is required, we construe a statute
to promote the end for which it was enacted, if such an
interpretation can reasonably be made from the language used.
VEPCO v. Board of County Supervisors, 226 Va. 382, 387-88, 309
S.E.2d 308, 311 (1983); Woolfolk v. Commonwealth, 18 Va. App.
840, 847, 447 S.E.2d 530, 533 (1994). Thus, a statute should be
read 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." Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d
61, 64 (1984). "Where a particular construction of a statute
will result in an absurdity, some other reasonable construction
which will not produce the absurdity will be found." Miller v.
Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942).
III.
Appellant contends that Arlington County Code
§ 14.2-38.2(B) requires the "owner, operator, or lessee of any
parking lot . . . or the authorized agent or the one having
control of such premises" to notify the police department of the
tow rather than the tow truck driver. This argument is without
merit.
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Arlington County Code § 14.2-38.2(B) states:
It shall be lawful for any owner, operator,
or lessee of any parking lot or parking area
or space therein or part thereof, or of any
other lot or building, or the authorized
agent of the one having control of such
premises to have any motor vehicle occupying
such lot, area, space, or building, or part
thereof, without the permission of such
owner, operator, lessee, or authorized agent
of the one having control of such premises
removed by a tow truck service to a garage
licensed by Arlington County or to a garage
licensed by Fairfax County or the cities of
Alexandria or Falls Church located within
(3) miles of the boundary of Arlington
County open for retrieval of vehicles by the
owner or custodian twenty-four (24) hours
per day, provided notice of such action
shall be given before the vehicle is removed
from the premises by the tow truck service
to the Arlington County Police Department.
Notice shall consist of:
(1) The name of the tow truck operator and
tow truck service removing the vehicle;
(2) A description of the vehicle towed;
(3) The location of the trespassing vehicle
and the time the tow truck service was
contacted, except that the notice need
not contain the time of contact if such
tow was made pursuant to a pre-existing
written contract;
(4) Where the vehicle is towed; and
(5) The name and address of the private
property owner or designee who signed the
written agreement to authorize the
removal of vehicles from the property, or
in those instances where a written
agreement is not required, the name and
address of the person authorizing the
tow.
Any infraction of this subsection is
unlawful and shall constitute a traffic
infraction punishable by a fine of not more
than one hundred dollars ($100.00). Such
failure to report shall limit the amount
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which may be charged for the storage and
safe-keeping of the towed vehicle to an
amount no greater than that charged for one
(1) day of storage and safe-keeping.
(Emphasis added.)
Applying well established principles of statutory
construction to the instant case, the plain meaning of "notice
of such action shall be given before the vehicle is removed from
the premises by the tow truck service to the Arlington County
Police Department" is that the burden to call in the tow to the
police lies with the tow truck service, not the premises' owner,
operator, lessee, or authorized agent of the entity in control
of the premises. When we construe the words "by the tow truck
service," giving them their ordinary meaning and reading the
notice requirement in conjunction with the penalty provision for
failure to provide such notice, the statutory language clearly
creates an obligation on the part of the tow truck operator to
call in the tow. Any other reading would "result in an
absurdity." See Miller, 180 Va. at 10, 21 S.E.2d at 723.
Thus, the statutory language specifically delineates what
the tow truck driver must do before his action in towing a motor
vehicle is deemed "lawful." He must, inter alia, provide
"notice" before the vehicle may be removed from the premises.
If he does so, he is protected by the statutory scheme, and he
may tow, store the vehicle and charge a storage fee until it is
redeemed by the owner. If he does not follow the procedures set
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out by Arlington County Code § 14.2-38.2(B), the tow truck
driver is subject to two penalties: a conviction of a traffic
infraction 2 and a limitation of costs to "one (1) day of storage"
fees. Additionally, the notice required by the statute includes
facts that only the tow truck operator would know, such as the
name of the tow truck operator, the name of the tow truck
service removing the vehicle, and where the vehicle is towed.
In the instant case, the evidence established that
appellant knew he was required to call in the tow to the police
and that he failed to do so. Appellant gave three conflicting
scenarios to Officer Ahn about why he failed to call in the tow
to the police and finally admitted he lied.
The credibility of a witness and the
inferences to be drawn from proven facts are
matters solely for the fact finder's
determination. See Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). In its role of judging witness
credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the
accused and to conclude that the accused is
lying to conceal his guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
95, 98 (1987) (en banc).
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998). Appellant's disingenuous statements allowed
the trial court to disbelieve all of appellant's testimony and
2
"Traffic infraction" means a violation of law punishable
as provided in Code § 46.2-113, which is neither a felony nor a
misdemeanor. Code § 46.2-100.
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find that he failed to notify the police contrary to the
requirements of Arlington County Code § 14.2-38.2(B). 3
Next, appellant contends that, properly applied, a penal
statute must be construed narrowly against the County. While we
agree with this proposition, it does not change the outcome of
this case. "We will not construe a penal statute in a manner
that requires us to disregard the clear and obvious meaning of
the statute." Huddleston v. United States, 415 U.S. 814, 831
(1974). The plain meaning of Arlington County Code
§ 14.2-38.2(B) placed the burden on appellant, the tow truck
operator, to call in the tow information. He failed to do so,
and for this reason we affirm appellant's conviction.
Affirmed.
3
Appellant also contends that the trial court erred when it
found the evidence sufficient to establish his agency
relationship to the owner of the property and to the tow
operator. Because we do not find this to be a statutory
requirement of the County, we do not address it further.
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