Miller v. Commonwealth

*473Opinion

KEENAN, J.

Anthony Miller was convicted in a bench trial of trespass in violation of Code § 18.2-119. The sole issue on appeal is whether Code § 18.2-119 applies to an alley located on property owned by the Alexandria Development and Housing Authority (Housing Authority).1 We find that it does and affirm Miller’s conviction.

On February 7, 1988, Miller was seen walking in an alley on Housing Authority property. The ends of the buildings and the ends of the alleys on the property were posted with “No Trespassing” signs, which were plainly visible. Miller was issued a summons for trespassing pursuant to Code § 18.2-119.2

The alley in question is located in a part of the Housing Authority property where the alleys and courtyards have been vacated by municipal ordinance. The “No Trespassing” signs were in place prior to January 31, 1988 and were authorized by the Housing Authority. In addition, the Housing Authority had an agreement with the Alexandria police that the trespass statute would be strictly enforced on all Housing Authority property.

The Supreme Court specifically has addressed the issue of whether the trespass statute applies to publicly owned property and has decided that it does. See, e.g., Johnson v. Commonwealth, 212 Va. 579, 186 S.E.2d 53, cert. denied, 407 U.S. 925 (1972); Jordan v. Commonwealth, 207 Va. 591, 151 S.E.2d 390 (1966); Miller v. Harless, 153 Va. 228, 149 S.E. 619 (1929). Consequently, Miller does not dispute the applicability of Code § 18.2-119 to Housing Authority property. Miller argues, however, that his motion to dismiss should have been granted because he was arrested for trespassing in an alley on Housing Authority property. He asserts that the alley was a thoroughfare on public property and therefore, pursuant to the Supreme Court’s holding in *474Johnson, not subject to the statutory prohibition of Code § 18.2-119.

We find that Johnson is not determinative of the issue raised by Miller and that Miller’s actions were prohibited by Code § 18.2-119. In Johnson, the question before the court was whether former Code § 18.1-173 (now Code § 18.2-119) applied to Wilson Hall, a building on the campus of Madison College, owned by the Commonwealth.3 The Court held that the statute applied and affirmed the trespass convictions of individuals who had participated in an unauthorized sit-in in that building.

The Court’s holding in Johnson was based on its earlier decision in Miller v. Harless. In Miller, the plaintiffs brought a civil action seeking damages for wrongful arrest while on the grounds of Virginia Polytechnic Institute (VPI). At issue were two jury instructions offered by the defendant which had been refused by the trial court. The substance of the instructions was essentially that if the plaintiffs went on the grounds of VPI, outside of the established walkways and driveways, after being warned that such action was impermissible, they were guilty of a trespass under former Va. Code Ann. § 3338 (1928). The Court held that the instructions should have been given. Miller, 153 Va. at 243, 149 S.E. at 624.

In reaching its holding in Johnson, the Court, found that there was nothing in the language of either former Code §§ 3338 or 18.1-173 to indicate a distinction in their applicability to either public or private property. Johnson, 212 Va. at 581, 186 S.E.2d at 55. The Court then concluded, stating: “Before our decision today, Miller stood for the proposition that a trespass statute like Code § 18.1-173 applies to publicly owned property other than thoroughfares. We now reaffirm that proposition.” Id. at 582, 186 S.E.2d at 56. It is this language which Miller claims supports his position that the alley was a “thoroughfare” and not subject to the prohibitions of Code § 18.2-119.

The Johnson decision did not, however, define the term “thoroughfare” since the definition was not necessary to the Court’s holding. Accordingly, we must now define that term in keeping *475with the law governing trespass. The only specific guidance on the meaning of the term is the language contained in the jury instructions in Miller v. Harless. Although the plaintiffs had been arrested for trespassing in an alfalfa field on the campus of VPI, the instructions upheld by the Court defined trespass as being on the grounds of VPI “outside of the established walkways and driveways.” Thus, it is arguable that the Court in Johnson clearly intended the word “thoroughfare” to include the established walkways and driveways on a state college campus.

In a trespass case decided subsequent to Miller, the Court upheld a conviction under former Code § 18.1-173, where the defendant was arrested after he was seen running on property adjacent to a government building which had been conspicuously marked with “No Trespassing” signs. Jordan, 207 Va. at 596, 151 S.E.2d at 390. Two years later, the Court determined that former Code § 18.1-365, which contained language similar to former Code § 18.1-173, did not apply to a public street. Price v. Commonwealth, 209 Va. 383, 387, 164 S.E.2d 676, 679 (1968).4

Based on these decisions, we hold that the term “thoroughfare,” as used by the Court in Johnson, is limited to those ways or passages designated for general public access. Consequently, the mere fact that the alley was located on Housing Authority property is not sufficient to establish that the alley retained the requisite public character sufficient to exempt it from the mandate of Code § 18.2-119.

The alley was government property and had been clearly marked to deter trespassing. Further, the Housing Authority had an express agreement with the police to enforce this policy, demonstrating its intent to restrict access to the alley and not open it to the general public. In addition, the alleys and courtyards in the surrounding area, including the alley in which Miller was walking, had been vacated by municipal ordinance. The alley was therefore distinguishable from the public street referred to in Price, and from the driveways and walkways open to the public on the VPI campus referred to in Miller.

*476We find that the alley in question was not intended for public use, and therefore was not a “thoroughfare” as described in Johnson. Thus, Code § 18.2-119 operated to bar Miller’s use of the alley. Accordingly, we affirm the judgment of the trial court.

Affirmed.

Moon, J., concurred.

Code § 18.2-119 provides in pertinent part: “If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, , . . after having been forbidden to do so ... by a sign or signs posted by [the owner, lessee, custodian or other person lawfully in charge thereof] ... at a place or places where it or they may be reasonably seen ... he shall be guilty of a Class 1 misdemeanor.”

A similar summons was issued to Miller on January 31, 1988. The circuit court granted Miller’s motion to strike as to that charge on sufficiency grounds.

Former Code § 18.1-173 provided in pertinent part: “If any person shall without authority of law go upon or remain upon the lands, buildings or premises of another, . . . after having been forbidden to do so . . . by the owner, lessee, custodian or other person lawfully in charge thereof, ... he shall be deemed guilty of a misdemeanor. . . .”

After the Court’s decision in Price, the legislature amended Code § 18.1-365 to include both public and private property.