Tony Orlando Hughes v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
TONY ORLANDO HUGHES
OPINION BY
v. Record No. 2696-99-1 JUDGE NELSON T. OVERTON
SEPTEMBER 12, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Charles E. Haden for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Tony Orlando Hughes, appellant, was convicted of possessing
marijuana with the intent to distribute it within 1,000 feet of
school property, in violation of Code § 18.2-255.2. On appeal, he
contends the evidence was insufficient to support the conviction.
We disagree and affirm the conviction.
FACTS
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that Sergeant Donnie Jordan
of the Hampton University Police Department initiated a lawful
traffic stop of a vehicle driven by appellant on Hampton Harbor
Avenue. Hampton Harbor Avenue, which leads directly to the
University library, is approximately ten yards wide and is
bounded on three sides by Hampton University property. The
property consists of retail shops and residential apartments.
During the course of Jordan's investigation, he discovered
that appellant's license was suspended. As a result, Jordan
advised appellant that he could not drive the vehicle. The
police subsequently recovered from either Jordan or the vehicle
two handguns, a bag containing marijuana, and another bag
containing $5,500 in cash.
ANALYSIS
Appellant's argument is two-fold. First, he contends Code
§ 18.2-255.2 1 does not apply because the property surrounding the
location of his arrest, although owned by Hampton University, is
1
At the time of the offense, the statute read, in pertinent
part:
A. It shall be unlawful for any person to
manufacture, sell or distribute or possess
with intent to sell, give or distribute any
controlled substance, imitation controlled
substance or marijuana at any time while (i)
upon the property, including buildings and
grounds, of any public or private
elementary, secondary, or post secondary
school, or any public or private two-year or
four-year institution of higher education;
(ii) upon public property or any property
open to public use within 1,000 feet of such
school property . . . .
Code § 18.2-255.2.
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not property of a "school" as contemplated by subpart (i) of the
statute because the property is not used for educational
purposes. Second, he argues the street where he was stopped is
not "property open to public use" under subpart (ii) of the
statute because the evidence did not show that children
congregated on the property.
In evaluating appellant's arguments, we are mindful that
Code § 18.2-255.2 is a penal statute and, as such, "must be
strictly construed against the state and limited in application
to cases falling clearly within the language of the statute."
Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338
(1983). But, "a statute should never be construed so that it
leads to absurd results." Branch v. Commonwealth, 14 Va. App.
836, 839, 419 S.E.2d 422, 424 (1992). Moreover, "words and
phrases used in a statute should be given their ordinary and
usually accepted meaning unless a different intention is fairly
manifest." Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447
S.E.2d 530, 534 (1994) (citing Huffman v. Kite, 198 Va. 196,
199, 93 S.E.2d 328, 331 (1956)).
I.
Appellant contends that "property, including buildings and
grounds," as used in subpart (i) of the statute, means property
used for educational purposes, or a "campus" as that term is
commonly used. Here, appellant notes, Jordan testified that the
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property surrounding the site of the arrest is not part of
Hampton University's "campus."
Even if we accept for the sake of argument that the words
"buildings and grounds" refer only to property used for
educational purposes or a "campus," the statute does not limit
the word "property" to that term. The statute merely states
that "buildings and grounds" are "include[ed]" in the definition
of "property."
Here, it is clear that the arrest took place within 1,000
feet of Hampton University property. If the word "property" is
to be given a definition other than its normal meaning, then it
is the job of the General Assembly to do so. The statute we
review in this case contains no such limitation.
II.
Appellant also contends the street where he was stopped is
not "property open to public use" under subpart (ii) of the
statute, as, he alleges, that term was defined or limited by us
in Smith v. Commonwealth, 26 Va. App. 620, 496 S.E.2d 117(1998). In Smith, we emphasized that the property upon which
the defendant was arrested was "open to public use" because the
evidence showed that the property was "the type of place where
school age children congregate." Id. at 626, 496 S.E.2d at 120.
Again, even if, for the sake of argument, we accept
appellant's interpretation of our decision in Smith, appellant's
argument fails. Appellant does not recognize the complete
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language of subpart (ii) of the statute. That language provides
that an offense occurs if the controlled substance is possessed
"upon public property or any property open to public use" that
is within 1,000 feet of school property. (Emphasis added.)
Here, the evidence showed, and appellant concedes in his brief,
that he was "stopped on a public thoroughfare." Thus, because
subpart (ii) of the statute is written in the disjunctive, the
conviction stands because appellant possessed the drugs on
"public property." We need not decide whether appellant was
stopped on "property open to public use."
For these reasons, we affirm appellant's conviction.
Affirmed.
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