Campbell v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Frank and Kelsey
Argued at Chesapeake, Virginia

KENNETH EDWARD CAMPBELL
OPINION BY
v. Record No. 3027-01-1 JUDGE D. ARTHUR KELSEY
NOVEMBER 19, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge

Robert C. Astor for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

The appellant, Kenneth Edward Campbell, claims the trial

court erred on two grounds when it convicted him for driving as

a habitual offender (second offense) in violation of Code

§ 46.2-357. First, Campbell argues that the Commonwealth had no

jurisdiction over this offense because the road he traveled on

was exclusively within a federal military base. Second,

Campbell contends the road should not be deemed a public highway

for purposes of the habitual offender statute. Persuaded by

neither argument, we affirm.

I.

While stationed as a guard at Cheatham Annex, a federal

military facility in York County, Officer Gayle Sharp observed a
car approach her guardhouse at the Annex's entrance on Route 199

East on March 27, 2001. Sharp, whose job required her to

restrict access to the facility to those showing proper

credentials, asked the driver, Kenneth E. Campbell, for

identification. When Campbell could not produce the requested

identification, Sharp denied his entry to the facility,

instructed him to pull his car to the shoulder of Route 199, and

called security. Following Sharp's instructions, Campbell

parked his car on the side of the road outside the fence

surrounding the Annex.

Shortly afterward, York County Deputy Michael Wright

arrived at the entrance to the Annex. Wright observed Campbell

sitting in his car with his engine running, parked between two

Commonwealth road signs. Wright approached Campbell's car,

ascertained Campbell's identity, and checked Campbell's license

on the police computer. Upon learning that Campbell was driving

with a suspended license while a habitual offender, Wright

placed Campbell under arrest.

At trial, the Commonwealth proved that Campbell was a

habitual offender at the time he was driving outside the

Cheatham Annex. In response, Campbell moved to dismiss on two

grounds. First, Campbell claimed that his arrest occurred on

land under the federal government's exclusive jurisdiction.

Second, Campbell argued that the habitual offender statute did

not cover the particular road upon which his arrest occurred.

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The trial court denied both motions, convicted Campbell of

driving as a habitual offender (second offense), and sentenced

him to five years in prison with two years suspended. Campbell

now appeals his conviction, asserting the same two grounds he

raised at trial.

II.

When reviewing a trial court's decision on appeal, we

examine the evidence in the light most favorable to the

prevailing party, the Commonwealth in this case, granting it the

benefit of any reasonable inferences. Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997). We review the

trial court's factual findings only to determine if they are

plainly wrong or devoid of supporting evidence. See Mier v.

Commonwealth, 12 Va. App. 827, 828, 407 S.E.2d 342, 343 (1991).

If reasonable jurists could disagree about the probative force

of the facts, we have no authority to substitute our views for

those of the trial judge.

Together, these principles require the appellant to

shoulder the burden of showing that the trial court's decision

"constituted reversible error." McGee v. Commonwealth, 25

Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc)

(citations omitted); see also Davis v. Commonwealth, 37 Va. App.

421, 429-30, 559 S.E.2d 374, 378 (2002). "Absent clear evidence

to the contrary in the record, the judgment of a trial court

comes to us on appeal with a presumption that the law was

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correctly applied to the facts." Yarborough v. Commonwealth,

217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); Oliver v.

Commonwealth, 35 Va. App. 286, 297, 544 S.E.2d 870, 875 (2001)

("The trial court's judgment is presumed to be correct.").

A.

Campbell's first argument, that the Commonwealth has no

jurisdiction over his case, asserts that his arrest occurred

within the geographical boundaries of the Cheatham Annex —— a

military base Campbell claims to be governed exclusively by

federal law. Finding that "the gated entrance to Cheatham Annex

is the part of the property that they are concerned about," the

trial court denied the motion. The court likewise held that,

"notwithstanding that, we probably have concurrent

jurisdiction." For the following reasons, we affirm the trial

court on its alternative holding.

Under settled principles, "the mere ownership of land by

the United States does not divest a state of its jurisdiction

over that land, and . . . the nature and extent of the federal

jurisdiction is dependent upon the consent of the state." Smith

v. Commonwealth, 219 Va. 455, 461, 248 S.E.2d 135, 139 (1978)

(citing James v. Dravo Contracting Co., 302 U.S. 134 (1937));

Waltrip v. Commonwealth, 189 Va. 365, 53 S.E.2d 14 (1949).

By statute, Virginia consents to cede only "concurrent

jurisdiction" to the United States to prosecute crimes committed

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on lands transferred to the federal government. Smith, 219 Va.

at 461, 248 S.E.2d at 139; see Code § 7.1-18.1(C) ("Over all

lands hereafter acquired by the United States, the Commonwealth

hereby cedes to the United States concurrent governmental,

judicial, executive and legislative power and jurisdiction.").

"When the United States acquires land by a state ceding its

jurisdiction, the state may impose 'conditions which are not

inconsistent with the carrying out of the purpose of the

acquisition,'" including the condition that the state retain

concurrent jurisdiction to enforce its traffic laws. Gay v.

Commonwealth, 10 Va. App. 229, 230, 391 S.E.2d 737, 737 (1990)

(quoting United States v. Unzeuta, 281 U.S. 138, 142 (1930)). 1

"Any additional jurisdiction over this land can be relinquished

only if the Commonwealth executes a deed of cession, and the

deed must be formally accepted by the United States." Smith,

219 Va. at 461, 248 S.E.2d at 139.

Among other things, concurrent jurisdiction includes

"jurisdiction of the courts of Virginia over persons,

transactions, matters and property on such lands . . . ." Code

§ 7.1-18.1(C). Territory subject to concurrent jurisdiction

thus comes within "the plenary authority of both the Federal

Government and the State," permitting both to exercise police

1
See generally 1A Julius L. Sackman, Nichols on Eminent
Domain § 2.131[1] n.13.1 (3d ed. rev. 2000) (surveying numerous
cession statutes from various states).

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powers. North Dakota v. United States, 495 U.S. 423, 429 n.2

(1990).

Because of the clear public policy announced in the cession

statute, "it is presumed that the Commonwealth retains

concurrent jurisdiction over the area embracing the locus of the

crime." Smith, 219 Va. at 461, 248 S.E.2d at 139. The

presumption in favor of concurrent jurisdiction can be rebutted,

but only by a clear manifestation of a specific intent to do so.

While a state may agree to transfer the last "residuum of

jurisdiction which otherwise it would be free to exercise,"

Silas Mason Co. v. Tax Comm. of Washington, 302 U.S. 186, 197

(1937), a total forfeiture of sovereignty cannot be presumed or

implied.

Applied to this case, these principles demonstrate that

the Commonwealth did not divest itself of concurrent legislative

jurisdiction over Cheatham Annex. The cession deed provided:

WHEREAS, the United States of America,
in order to provide for more convenient and
efficient law enforcement operation desires
to adjust the jurisdiction so that it will
enjoy concurrent legislative jurisdiction
with the Commonwealth.

WHEREAS, the Director of Real Estate,
Department of the Navy, the authorized
officer, by letter dated September 27, 1984,
requested that the Commonwealth cede such
legislative jurisdiction so that both
sovereigns would enjoy concurrent
legislative jurisdiction.

* * * * * * *

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 WITNESS that, for and in consideration
of the premises, the Commonwealth of
Virginia . . . hereby cede[s] such
legislative jurisdiction to the United
States of America so each party hereto will
enjoy concurrent jurisdiction . . . .

(Emphasis added.)

The phrase "legislative jurisdiction" refers to the

"lawmaking power of a state" and "the power of a state to apply

its laws" to a particular set of facts. Adventure

Communications v. Kentucky Registry of Election Fin., 191 F.3d

429, 435 (4th Cir. 1999) (citations omitted). See generally

Willis L.M. Reese, Legislative Jurisdiction, 78 Colum. L. Rev.

1587, 1587-94 (1978). Given the accepted meaning of concurrent

jurisdiction, particularly when coupled with the concept of

legislative jurisdiction, the provisions in the Cheatham cession

deed hardly can be interpreted to cede all state power to the

federal government, leaving it with exclusive federal

jurisdiction over the enclave.

Campbell correctly points out that the deed goes on to

reserve the "power to serve civil and criminal process on such

lands . . . ." This reservation, he asserts, has the effect of

eviscerating all concurrent state power except the power to

serve process. Campbell's cramped interpretation of the cession

deed, however, finds no favor in our law. Virginia courts

presume that the Commonwealth retains plenary concurrent

jurisdiction unless it has been expressly ceded to the federal

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government. The inclusion in the deed of a lesser-included

power (the authority to serve process) perhaps can be criticized

as redundant. But it cannot be construed as an implied

forfeiture of all incidents of dual sovereignty inherent in the

concept of concurrent jurisdiction.

After all, Virginia law requires the Commonwealth —— at a

minimum —— to preserve state authority in the cession deed to

serve process on individuals within federal enclaves. See Code

§ 7.1-18.1(C); Code § 7.1-21(6). The underlying "purpose of

this reservation is to prevent the land involved from becoming

an asylum for fugitives from justice." United States v.

Schuster, 220 F. Supp. 61, 64 (E.D. Va. 1963). As a result, the

service-of-process provision does not sufficiently rebut the

presumption of concurrent jurisdiction. 2

B.

Campbell's second argument, that the roadway on which he

was arrested was not a "highway" for purposes of the habitual

offender statute, likewise must be rejected.

2
It would be an entirely different case if the Cheatham
Annex deed, like one executed by Virginia Governor James Monroe
in 1801, provided that the state ceded "all the jurisdiction
which this Commonwealth possesses over the public lands" except
the power to execute process. Western Union Tel. Co. v. Chiles,
214 U.S. 274, 277 (1909). The plain import of that cession deed
(in contrast to the equally plain meaning of the Cheatham Annex
deed) adequately rebuts the presumption of concurrent
jurisdiction. Id.

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 Virginia law prohibits a habitual offender from driving on

the "highways of the Commonwealth" while his driver's license

remains revoked. Code § 46.2-357. Though the statute defines a

highway as the "entire width between the boundary lines of every

way or place open to the use of the public for purposes of

vehicular travel," Code § 46.2-100, the identifying feature of a

highway remains "the degree to which the way is open to public

use for vehicular traffic." Furman v. Call, 234 Va. 437, 439,

362 S.E.2d 709, 710 (1987).

The public's free and unrestricted use of a roadway

supports the inference that a road is a highway. Evidence that

the roadway's users must obtain either explicit or implicit

permission to use the road may refute this inference. See Kay

Mgmt. Co. v. Creason, 220 Va. 820, 832, 263 S.E.2d 394, 402

(1980). Mere inconveniences to free travel on a road (such as

"checking in and out" vehicles at checkpoints or access gates)

do not inhibit public use of the roadway to the extent that they

divest a road of its character as a highway. See Coleman v.

Commonwealth, 16 Va. App. 747, 749, 433 S.E.2d 33, 35 (1993)

(where a federal enclave is "open to the public," the presence

of an access gate for "checking in and out" of the enclave did

not preclude the road from being a highway under the habitual

offender statute).

A combination of impediments on free and unrestricted

travel —— private ownership of the way, use reserved for

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business invitees, absence of traffic signs, the owner's ability

to remove people from the premises —— must exist to categorize a

road as private. See Roberts v. Commonwealth, 28 Va. App. 401,

406, 504 S.E.2d 890, 892 (1998); see also Flinchum v.

Commonwealth, 24 Va. App. 734, 737-38, 485 S.E.2d 630, 631

(1997) (a parking lot open only to invitees was not a highway).

In this case, we need not answer the question whether the

road inside the Annex's gate was a highway for purposes of the

habitual offender statute because Campbell never entered that

road. Although Campbell intended to enter that secured portion

of the road, Sharp denied his entry when he could not produce

proper identification. Then, while still outside the secured

portion of the Annex, Campbell pulled his car away from the

Annex and parked on the side of Route 199 until the police

arrived. Campbell remained, at all times, on an unrestricted

portion of the highway, in an area open to any member of the

driving public. There, Campbell clearly drove on a highway

covered by the habitual offender statute. See Coleman, 16

Va. App. at 749, 433 S.E.2d at 35 (classifying a

minimally-restricted road within a federal enclave as a

highway).

Even if, as Campbell insists, some small area outside the

Annex gate did not qualify as a public highway, the entire

length of Route 199 leading up to that area obviously does.

Officer Sharp's observations, as well as the exhibits and

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photographs reviewed by the trial court, confirm that (i) Route

199 is the only road leading to the Annex gate area, and (ii)

Campbell drove up Route 199 for a considerable distance before

entering the area between the warning sign and the Annex gate.

No evidence proved any other person was in the car. Thus, the

absence of any viable alternative explanation for Campbell's car

getting to the gate area (other than by Route 199) sufficiently

supports the conclusion that Campbell drove on a public highway.

III.

The evidence proved the Commonwealth had concurrent

jurisdiction to enforce its traffic laws against Campbell. The

trial court did not err in rejecting Campbell's argument that

the cession deed limited this jurisdiction. Nor did the trial

court err in finding that Campbell drove his vehicle on a public

highway in violation of the habitual offender statute. We thus

affirm Campbell's conviction.

Affirmed.

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