Fullwood v. Com.

Present: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette,
JJ., and Carrico, S.J.

RONNIE EUGENE FULLWOOD
OPINION BY
v. Record No. 091015 SENIOR JUSTICE HARRY L. CARRICO
February 25, 2010
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal involves the application of Code § 18.2-255.2,

which is entitled “Prohibiting the sale or manufacture of drugs

on or near certain properties.” On June 12, 2006, a grand jury

in the Circuit Court for the City of Newport News indicted the

defendant, Ronnie Eugene Fullwood, on one count of possessing

marijuana and one count of possessing cocaine with intent to

distribute within 1,000 feet of a school while upon public

property or property open to public use in violation of Code

§ 18.2-255.2.

At the outset of a bench trial in the circuit court,

Fullwood moved to dismiss one of the charges against him on the

ground that possession of more than one substance with intent to

distribute within 1,000 feet of a school constituted only one

offense because the possession was based upon a single incident

or transaction. The circuit court denied the motion. The court

denied similar motions made at the conclusion of the

Commonwealth’s evidence and at the conclusion of all the

evidence, the latter motion adding an argument that both charges
should be dismissed because the possession did not occur on

property open to public use.

At Fullwood’s sentencing, he again moved the dismissal of

one of the charges on the ground that the possession of two

substances at the same time constituted only one offense. The

circuit court denied the motion and sentenced Fullwood to

incarceration with the Virginia Department of Corrections for

five years on his marijuana conviction, all suspended, and for

five years on his cocaine conviction, with four years suspended.

Both suspensions were conditioned upon Fullwood’s good behavior

for fifteen years and his supervision on probation for one year

from the date of his release from custody. ∗

In a published opinion, the Court of Appeals of Virginia

affirmed the judgment of the circuit court. Fullwood v.

Commonwealth, 54 Va. App. 153, 676 S.E.2d 348 (2009). We

awarded Fullwood this appeal.

Code § l8.2-255.2 provides in pertinent part as follows:

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 while:

(i) upon the property, including buildings and
grounds, of any public or private elementary,
secondary, or post secondary school, or any public

∗
Fullwood was also convicted of two other drug charges plus
a charge of possessing a firearm while simultaneously possessing
controlled substances. However, these charges are not involved
in this appeal.

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 or private two-year or four-year institution of
higher education, or any clearly marked licensed
child day center as defined in § 63.2-100;

(ii) upon public property or any property open
to public use within 1,000 feet of the property
described in clause (i);

. . . .

B. Violation of this section shall constitute a
separate and distinct felony. Any person violating
the provisions of this section shall, upon conviction,
be imprisoned for a term of not less than one year nor
more than five years and fined not more than $100,000.
A second or subsequent conviction hereunder for an
offense involving a controlled substance classified in
Schedule I, II, or III of the Drug Control Act
(§ 54.1-3400 et seq.) or more than one-half ounce of
marijuana shall be punished by a mandatory minimum
term of imprisonment of one year to be served
consecutively with any other sentence.

BACKGROUND

On the early afternoon of January 20, 2006, Officers Ara M.

Hahn and J. S. Turlington of the City of Newport News Police

Department conducted surveillance at the Newsome Park apartment

complex located on a dead-end street in the city. Off of the

end of that street is a cul-de-sac and off of the cul-de-sac is

a parking lot serving the complex that is less than six hundred

feet from the Newsome Park Elementary School.

The apartment complex is located on private property posted

with “No Trespassing” signs. There was also a letter on file

with the Police Department authorizing the police to enforce the

“No Trespassing” prohibition.

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 The police suspected that an “open-air drug market” was

being operated on the parking lot; they had made “a lot [of

arrests] dealing with narcotics” and had seized “various amounts

of mostly marijuana.” Officers Hahn and Turlington positioned

themselves in a vacant apartment overlooking the parking lot.

Using binoculars, Officer Hahn saw Fullwood pull into the

parking lot and park his car near a dumpster. He alighted from

the car and remained in the area talking to “people out there

loitering around.”

About 3:30 p.m., a pickup truck pulled into the parking lot

and stopped twenty to thirty yards away from Fullwood’s car.

The driver of the pickup “never got out.” Within a twenty-

second span, Fullwood approached the driver’s window of the

pickup, had a brief conversation with the driver, and “appeared

to get . . . money, currency” from him. Fullwood then walked to

his car, opened the trunk, and got “a small item” out of a

backpack. Fullwood walked back to the pickup, where the driver

put out his hand, palm up, into which Fullwood “appeared to drop

something.” Fullwood walked away and entered one of the

apartments, where he stayed for “a couple minutes.” The driver

of the pickup exited the parking lot.

Officer Hahn radioed “surrounding units that were acting as

take-down units” and gave them a description of the pickup truck

and described what he had observed. J.V. Polak, a sergeant of

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the Police Department, observed the pickup on a nearby street,

conducted a traffic stop, and gave the driver Miranda warnings.

Sergeant Polak recovered “[a] clear plastic bag containing

suspected marijuana” from the driver.

Officer Hahn later observed another suspected sale when a

vehicle pulled into the parking lot and a passenger wearing a

“Georgetown Hoyas jacket” got out and engaged Fullwood in a

brief conversation. The two then went to the trunk of

Fullwood’s vehicle where Fullwood retrieved a “plastic bag that

looked like it had an off-white substance inside of it.”

Fullwood “received money” and “did the exchange with the

gentleman in the Hoyas jacket,” who got into his car and drove

away. He was not arrested because Officer Hahn did not have an

officer “to take down that suspected buyer.”

About 5:43 p.m., Sergeant Polak arrived at the parking lot

and observed Fullwood walking around. Polak approached

Fullwood, placed him under arrest, and told him that there would

be a search of his car. Fullwood told Sergeant Polak that

“there was a gun in the trunk,” and when Sergeant Polak said he

“believed there was marijuana in the trunk,” Fullwood said

“there was about two ounces in the trunk.”

The trunk was opened and on the top of the spare tire

Sergeant Polak recovered “a Ruger P95DC semiautomatic handgun

with a magazine containing 15 rounds of live ammunition.” Polak

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also found in the backpack a clear plastic bag that contained

forty-seven individually wrapped chunks of cocaine, two small

pieces of individually wrapped cocaine, another clear plastic

bag with a large chunk of crack cocaine, and two clear plastic

bags with forty individually wrapped bags of marijuana inside.

In addition, Sergeant Polak recovered from Fullwood’s pants

pockets three pieces of crack cocaine along with $203.00 in cash

and a cellular phone.

THE ISSUES

Fullwood does not dispute that he possessed both cocaine

and marijuana within one thousand feet of a school or that he

intended to distribute both drugs. He does dispute that he

possessed the drugs while on public property or property open to

public use. On its part, the Commonwealth does not contend that

the parking lot where the drugs were possessed is public

property. Therefore, only the “property open to public use”

portion of Code § 18.2-255.2 is pertinent to our review.

Fullwood also disputes that the circuit court could

convict him of possessing both cocaine and marijuana without

violating his guarantee against double jeopardy. Thus two

questions are presented, (1) whether Fullwood was upon property

open to public use while he possessed the drugs, and (2) whether

his convictions for possessing both cocaine and marijuana with

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intent to distribute within 1,000 feet of a school violated the

constitutional prohibition against double jeopardy.

Noting that Code § 18.2-255.2 is a penal statute, Fullwood

relies on our decisions which have held that such laws “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); Hughes v. Commonwealth, 33 Va. App. 405, 408, 533 S.E.2d

649, 650 (2000). We have made it clear that it is a fundamental

rule of statutory construction that penal statutes are to be

strictly construed against the Commonwealth and in favor of a

citizen’s liberty. Harward v. Commonwealth, 229 Va. 363, 365,

330 S.E.2d 89, 92 (1985). 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 penal statute.

Martin v. Commonwealth, 224 Va. 298, 300-01, 295 S.E.2d 890, 892

(1982). None of these statements of basic principles, however,

warrants the conclusion Fullwood asks us to draw in the

circumstances of these offenses.

With respect to the issue whether the parking lot was

property open to public use, Fullwood argues that the circuit

court construed Code § 18.2-255.2 expansively to cover a case

not clearly described by the language used. He says that

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because the Newsome Park apartment complex was posted with “No

Trespassing” signs, backed up by the letter on file in the

Police Department, the parking lot where he possessed the drugs

was private and not open to public use.

We disagree with Fullwood. The circuit court made a

factual finding that the parking lot was property open to public

use, and the record supports that finding. Fullwood does not

challenge Officer Hahn’s characterization of the parking lot as

an “open-air drug market” where the police made “a lot [of

arrests] dealing with narcotics,” proving that “a lot” of

members of the public used the lot. On the day in question,

there were “people out there loitering around” in the parking

lot and Fullwood spent practically his whole afternoon there,

meanwhile serving two drug purchasers who arrived on the scene.

The fact that they knew where to go to secure drugs would

indicate they had been there before, and from the quantity of

drugs Sergeant Polak recovered from the trunk of Fullwood’s car,

it is obvious Fullwood anticipated the arrival of other

potential purchasers of his wares before the day ended. Thus,

it is clear on the record before us that the parking lot was

“readily accessible” to members of the public who were not

residents of the complex or whose presence was not authorized,

including Fullwood. People v. Jiminez, 39 Cal. Rptr.2d 12, 13-

15 (Cal. Ct. App. 1995); see Smith v. Commonwealth, 26 Va. App.

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620, 626, 496 S.E.2d 117, 120 (1998) (holding that the area

outside a convenience store was “property open to public use”

because “[there was] no indication in the record that [the area]

was blocked, closed, or in any way inaccessible to the public”

and that “the participants to the drug transaction . . . had

full access to the property on several occasions.”)

The fact that people might have been using the lot for

illegal purposes does not affect the question whether it was

“property open to public use.” Code § 18.2-255.2(A)(ii) is

unambiguous in its meaning; it reads “property open to public

use,” not “property open to legal public use,” and language

cannot be added to change its meaning. Seguin v. Northrop

Grumman Systems Corp., 277 Va. 244, 248, 672 S.E.2d 877, 879

(2009).

There were, of course, many people using the lot for legal

purposes, including the tenants of the apartment complex and

their visiting friends and relatives, service personnel,

mailmen, deliverymen, and others. More important, there would

doubtless be many children, including students from the nearby

elementary school, using the lot daily. It was to protect

children from the “threat of harm” posed “when drug transactions

take place within 1,000 feet of a school” that Code § 18.2-255.2

was enacted. Commonwealth v. Burns, 240 Va. 171, 177, 395

S.E.2d 456, 459 (1990).

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 We have not overlooked Fullwood’s fervent reliance upon the

“No Trespassing” signs posted in the apartment complex. He has

repeatedly stressed the presence of the signs during his trial

in the circuit court, in the briefs he has filed, and in oral

argument before this Court. But he has not once stated where in

the apartment complex the signs were posted and, most notably,

there is not a shred of evidence in the record even suggesting

that a sign was posted at the parking lot. One would expect

that had there been a “No Trespassing” sign posted there,

Fullwood would have favored us with an enlarged photograph.

There being no evidence of any posted restriction on accessing

the parking lot, much less active enforcement of such a

prohibition, members of the public could not have reasonably

anticipated being challenged regarding their use of the lot, and

thus we conclude that the parking lot was “property open to

public use” within the meaning of Code § 18.2-255.2(A)(ii). See

Smith, 26 Va. App. at 626, 496 S.E.2d at 120 (holding that the

property in question was “open to public use,” in part, because

the “participants to the drug transaction . . . had full access

to the property . . . with no interruption from the owners of

the establishment”); cf. United States v. Smith, 395 F.3d 516,

520-21 (4th Cir. 2005) (holding, in a case involving whether an

access road was a “highway” under Virginia law, that “[t]he

presence of signs [posted along the roadway] barring public

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entry establishes that the access road is not open to public

use”); Caplan v. Bogard, 264 Va. 219, 225, 226-29, 563 S.E.2d

719, 722, 723-24 (2002) (holding that the lack of a physical

barrier preventing “entrance to . . . a privately maintained

parking lot” did not alone suffice to raise a presumption that

the route was a “highway” under Virginia law, i.e., a route

“open to the use of the public for purposes of vehicular

travel”) (internal quotation marks omitted).

This brings us to the double jeopardy issue. Fullwood

argues that the circuit court again violated the principles of

statutory construction in convicting him of two violations of

Code § 18.2-255.2 and subjecting him to the mandatory minimum

penalty for a second offense “even though there was only a

single occasion or transaction in which controlled substances

were held for sale or distribution.”

Fullwood contends that the General Assembly intended in

enacting Code § 18.2-255.2 to deter “drug transactions, not the

possession of individual drugs per se,” and if the intention of

the legislature had been to provide for prosecution “on a per-

substance basis, it could have indicated so.” We cannot add

this provision to the statute, Fullwood asserts, and, without

it, the statute permits the prosecution of only one offense,

regardless of the number of drugs he possessed. Hence, Fullwood

concludes, the circuit court’s application of the statute

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permits multiple punishments for the same offense in violation

of the double jeopardy clauses of the Constitution of the United

States and the Constitution of Virginia.

Both double jeopardy clauses protect against a second

prosecution for the same offense after acquittal. They also

forbid a second prosecution for the same offense after

conviction. And they prohibit multiple punishments for the same

offense. Brown v. Ohio, 432 U.S. 161, 165 (1977); Blythe v.

Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981).

Whether there has been a double jeopardy violation presents

a question of law requiring a de novo review. See United States

v. Imngren, 98 F.3d 811, 813 (4th Cir. 1996). In such a review,

the rule is that “[w]here consecutive sentences are imposed at a

single criminal trial, the role of the constitutional guarantee

is limited to assuring that the court does not exceed its

legislative authorization by imposing multiple punishments for

the same offense.” Brown, 432 U.S. at 165.

We disagree with Fullwood’s contention that there was only

a single transaction in which controlled substances were held

for sale or distribution within 1,000 feet of a school and which

would support only one conviction. There was one transaction

involving marijuana in Fullwood’s encounter in the parking lot

with the driver of the pickup truck and a second transaction

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involving cocaine in Fullwood’s meeting in the parking lot with

the driver wearing a “Hoyas jacket.”

Code § 18.2-255.2 clearly makes these two transactions two

offenses and displays the legislative intent that they should be

subject to multiple punishments. Subsection B of the statute

provides that “[v]iolation of this section shall constitute a

separate and distinct felony” with punishment at a certain level

for a first conviction but at an enhanced level for a “second or

subsequent conviction” involving certain classified controlled

substances or more than one-half ounce of marijuana. To hold

that Fullwood’s two transactions constituted only one offense

would amount to writing out of the statute the language

concerning a “second or subsequent conviction,” and we are not

inclined to do that.

CONCLUSION

We hold that the circuit court did not err in finding that

the violations in question occurred on “property open to public

use” under Code § 18.2-255.2(A)(ii) and that the court did not

exceed its legislative authorization in sentencing Fullwood to

multiple punishments. Accordingly, we will affirm the judgment

of the Court of Appeals.

Affirmed.

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