COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
STUART ACREE BARBOUR, JR.
MEMORANDUM OPINION * BY
v. Record No. 0123-96-3 JUDGE LARRY G. ELDER
APRIL 15, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
Stuart A. Barbour, Jr., pro se.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Stuart Acree Barbour, Jr. (appellant) appeals his conviction
of improper driving in violation of Code § 46.2-857. He contends
that the City of Roanoke Circuit Court (trial court) lacked
subject matter jurisdiction over his case and, in the
alternative, that the evidence was insufficient to support his
conviction. For the reasons that follow, we affirm.
I.
SUBJECT MATTER JURISDICTION
Appellant contends for the first time on appeal that the
trial court lacked subject matter jurisdiction over his case. We
disagree.
It is well settled that "a judgment is void ab initio only
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
if it 'has been procured by extrinsic or collateral fraud, or
entered by a court that did not have jurisdiction over the
subject matter or the parties.'" Parrish v. Jessee, 250 Va. 514,
521, 464 S.E.2d 141, 145 (1995) (quoting Rook v. Rook, 233 Va.
92, 95, 353 S.E.2d 756, 758 (1987)). "Otherwise a judgment is
merely voidable and may be set aside only (1) by motion to the
trial court filed within twenty-one days of its entry, . . .
(2) or on direct appeal, . . ., or (3) by bill of review . . . ."
Id. (citations omitted). Although arguments not presented to
the trial court are generally not entertained on appeal,
"objections to subject-matter jurisdiction may be raised at any
time and are not waivable." Owusu v. Commonwealth, 11 Va. App.
671, 672, 401 S.E.2d 431, 431 (1991); see also Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
We hold that the trial court had subject matter jurisdiction
over the criminal charge against appellant. Appellant's case was
originally heard by the City of Roanoke General District Court.
Appellant subsequently appealed his conviction in the district
court to the trial court. Circuit courts have subject matter
jurisdiction:
of all cases, civil and criminal, in which an
appeal . . . may, as provided by law, be
taken to . . . such courts . . . from or to
the judgment or proceedings of any inferior
tribunal.
Code § 17-123. Circuit courts have appellate jurisdiction over
criminal and traffic cases initially heard in a general district
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court. General district courts have original jurisdiction for
the trial of "[a]ll other misdemeanors and traffic infractions
arising in such . . . city [for which the district court is
established]." Code § 16.2-123.1. In addition, Code § 16.1-132
provides a right of appeal to the circuit court for "[a]ny person
convicted in a district court of an offense not felonious
. . . ." Because appellant was charged with reckless driving and
appealed his initial conviction in the City of Roanoke General
District Court, the City of Roanoke Circuit Court had subject
matter jurisdiction to try his case de novo. See Code § 16.1-136
(stating that an appeal taken from a district court shall be
heard de novo in the appellate court).
Appellant argues that he was charged with "improper driving"
and that this charge is not cognizable under the Commonwealth's
laws regulating the operation of motor vehicles. However, the
summons issued by Officer Bingeman, the charging document in this
case, does not charge appellant with "improper driving."
Instead, it charges appellant with "driving 2 vehicles abreast in
one lane" in violation of Code § 46.2-857.
We also disagree with appellant's argument that the
Commonwealth failed to establish that his alleged traffic
infraction occurred in the City of Roanoke. At trial, the
Commonwealth's attorney had the following exchange with Officer
Bingeman:
Q. And [appellant] went to the right, is
that correct?
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A. Correct. He passed on the right.
Q. The light was green, is that right?
A. Yes, sir.
Q. Okay. All right. Was this driving in
the City of Roanoke?
A. Yes, it was.
This evidence supports the trial court's conclusion that it had
jurisdiction over appellant's case.
II.
SUFFICIENCY OF THE EVIDENCE
Appellant contends that the evidence was insufficient to
prove that he violated Code § 46.2-857. We disagree.
When considering the sufficiency of evidence on appeal in a
criminal case, this Court views the evidence in a light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its own judgment for that
of the trier of fact. See Cable v. Commonwealth, 243 Va. 236,
239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will
not be set aside unless it appears that the judgment is plainly
wrong or without supporting evidence. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
We hold that the evidence was sufficient to support
appellant's conviction of violating Code § 46.2-857. In a
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prosecution under Code § 46.2-857, the Commonwealth must prove
that the defendant drove his or her motor vehicle so as "to be"
or "to travel" abreast of another vehicle "in a lane designed for
one vehicle." Code § 46.2-857. Officer Bingeman testified that
Brambleton Avenue has a double yellow line painted in its middle
and is wide enough to accommodate one lane of traffic traveling
in either direction while enabling cars to parallel park on the
east-bound side of the street. This evidence supports the trial
court's conclusion that the east-bound lane of Brambleton Avenue
on which appellant was driving is "designed for one vehicle." In
addition, Officer Bingeman testified that while a mail truck was
stopped at an intersection and as an Oldsmobile was still
approaching the intersection, appellant pulled to his right and
passed both vehicles in the space normally used for parking on
Brambleton Avenue. This evidence supports the trial court's
conclusion that appellant drove his car so as to travel abreast
of another vehicle.
For the foregoing reasons, we affirm the conviction of
improper driving in violation of Code § 46.2-857.
Affirmed.
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