Michael E. Copeland v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
MICHAEL E. COPELAND
v. 	Record No. 0654-95-2 	MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA 	MARCH 12, 1996
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
C. David Whaley (Elizabeth Dashiell Scher;
Morchower, Luxton and Whaley, on brief), for
appellant.
Robert B. Beasley, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
In this appeal by Michael E. Copeland (appellant) from a
judgment of the Circuit Court of Dinwiddie County (trial court)
that approved his jury trial conviction "of operating a motor
vehicle after his privilege to drive had been suspended or
revoked," the sole issue presented is whether the evidence is
sufficient to support the conviction.
Viewing the evidence in the light most favorable to the
Commonwealth, the record discloses that at approximately 1:30 in
the afternoon of January 30, 1994, Virginia State Trooper Mark
Haygood (Haygood) was patrolling the parking lot of a rest stop
off Interstate 85 in Dinwiddie County. 	At that time, Haygood
observed appellant seated behind the wheel of a Cadillac
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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automobile that was parked on the lot. 	The Cadillac's motor was
not running and there was no key in the ignition switch. 	There
were no other people in the vicinity of the vehicle.
Haygood drove approximately twenty-five yards past the
Cadillac then observed appellant exit and walk around the front
of the vehicle. 	Haygood returned to where appellant was,
approached him, and engaged him in a casual conversation. 	At
Haygood's request, appellant produced St. Paul's College and
Virginia identification cards, one of which Haygood used to check
for any motor vehicle violations. 	Haygood learned that
appellant's license to drive had been suspended or revoked and
cautioned appellant not to drive. 	Nothing in the record
discloses that appellant disregarded that instruction. 	In
addition, nothing in the record reveals who owned the Cadillac or
to whom its license plates had been issued. 	Appellant made no
incriminating statement.
Haygood remained on the parking lot approximately forty
minutes during which time he saw no other person approach the
Cadillac or enter the lot on which the vehicle was parked.
Haygood left the parking lot without charging appellant with any
driving offense; however, the next day he caused a warrant of
arrest to be issued against appellant, charging that appellant
"did unlawfully in violation of Section 46.2-301, Code of
Virginia: Operate a motor vehicle on a public highway in this
Commonwealth to wit: Drive on Suspended or revoked license, 2nd

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or Subsequent offense." 	In relevant part, Code 46.2-301
provides: B. Except as provided in §§ 46.2-304 and
46.2-357, no resident or nonresident (i)
whose driver's license, learner's permit, or
privilege to drive a motor vehicle has been
suspended or revoked or (ii) who has been
directed not to drive by any court, by the
Commissioner, or by operation of law pursuant
to this title or (iii) who has been
forbidden, as prescribed by law, by the
Commissioner, the State Corporation
Commission, the Commonwealth Transportation
Commissioner, any court, or the
Superintendent of State Police, to operate a
motor vehicle in the Commonwealth shall
thereafter drive any motor vehicle or any
self-propelled machinery or equipment on any
highway in the Commonwealth until the period
of such suspension or revocation has
terminated. 	A clerk's notice of suspension
of license for failure to pay fines or costs
given in accordance with § 46.2-395 shall be
sufficient notice for the purpose of
maintaining a conviction under this section.
For the purposes of this section, the phrase
"motor vehicle or any self-propelled
machinery or equipment" shall not include
mopeds.
Code § 46.2-301(B).
Penal statutes are to be strictly construed
against the Commonwealth and in favor of the
citizen's liberty. . . . Such statutes may
not be extended by implication; they must be
applied to cases clearly described by the
language used. . . . And the accused is
entitled to the benefit of any reasonable
doubt about the construction of a criminal
statute.
Stevenson v. City of Falls Church, 243 Va. 434, 436, 416 S.E.2d
435, 437 (1992) (quoting Martin v. Commonwealth, 224 Va. 298,
300-01, 295 S.E.2d 890, 892 (1982)). 	Code § 46.2-301(B) requires

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that the Commonwealth prove beyond a reasonable doubt that
appellant operated a motor vehicle on a highway in the
Commonwealth. 	There is no evidence that appellant drove the
Cadillac onto or off of the parking lot. 	There appears to be
some conflict in the cases as to whether if there is a key in the
ignition, and the defendant is seated behind the wheel, the
switch needs to be in the "ON" position. 	Here, it has not been
shown that a key was in the ignition or even whether appellant
had keys that would fit the switch. 	Therefore, not only has it
not been shown that appellant "drove" the Cadillac, it has not
been shown whether he possessed the capability of "operating" the
vehicle.
For the reasons stated, we hold that the Commonwealth has
not met its burden to prove beyond a reasonable doubt that
appellant drove or operated a motor vehicle after his license to
drive had been suspended or revoked.
Accordingly, the judgment of the trial court is reversed and
the charge dismissed.
Reversed and dismissed.