Flinchum v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Coleman and Willis
Argued at Salem, Virginia

RUFUS EUGENE FLINCHUM, JR.
OPINION BY
v. Record No. 1891-96-3 CHIEF JUDGE NORMAN K. MOON
MAY 27, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
(Robert M. Jenkins; Jenkins & Jenkins, on
brief), for appellant.

(James S. Gilmore, III, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.

Rufus Eugene Flinchum, Jr. appeals his conviction of driving

after having been declared an habitual offender in violation of

Code § 46.2-357. Flinchum asserts that the trial court erred in

finding that he was operating his vehicle on a "highway" as

defined by Code § 46.2-100. We agree and reverse.

On November 1, 1995, Officer Dalton Reid of the

Christianburg Police Department observed a vehicle "doing

doughnuts" in the parking lot of a sporting goods store at 9:00

p.m. He then observed the vehicle drive from the sporting goods

parking lot into an adjacent parking lot in front of a car repair

business. Reid testified that he did not see the vehicle drive

on Route 11, which runs in front of both businesses.

Subsequently, Flinchum was determined to be the operator of the

vehicle and was arrested for driving a vehicle after having been
declared an habitual offender.

At trial, Flinchum testified that he had not driven on Route

11 and that he had only driven in the parking lots of the

sporting goods store and the repair business. A "no trespassing"

sign was posted on the auto shop's property.

Code § 46.2-100 defines "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 in
the Commonwealth, including the streets and
alleys, and, for law enforcement purposes,
the entire width between the boundary lines
of all private roads or private streets which
have been specifically designated "highways"
by an ordinance adopted by the governing body
of the county, city, or town in which such
private roads or streets are located.

"[T]he test for determining whether a way is a `highway' depends

upon 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) (citing Kay Management v. Creason, 220 Va. 820,

831-32, 263 S.E.2d 394, 401 (1980)). In Kay Management, the

Court held that "evidence of accessibility to the public for free

and unrestricted use gave rise to a prima facie presumption" that

the streets in an apartment complex, which were privately owned

and maintained, were "highways" for law enforcement purposes.

220 Va. at 832, 263 S.E.2d at 402.

The Court reached the same conclusion in Furman where it

considered whether the parking area of a condominium office

complex was encompassed within the legal definition of highway.

234 Va. at 439, 362 S.E.2d at 710. The Furman Court found that
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even though the lot was posted with signs stating "Private

Property" and "No Soliciting," the lot was a highway within the

meaning of the statutory definition because public access was

unrestricted. Id. at 441, 362 S.E.2d at 711. The Court noted

that "[t]he roads around and in the complex . . . have never been

closed to the public; the complex is open for vehicular traffic

24 hours a day, seven days a week. No guard or barricade system

prevents the public from driving at will through the complex."
Id. at 438, 362 S.E.2d at 710. The Court further noted that

"[t]he only signs read: `Private Property, No Soliciting.'

Clearly the purpose of the signs is to prohibit soliciting not

the entry of motor vehicles operated by members of the public."

Id. at 441, 362 S.E.2d at 711.

However, in Prillaman v. Commonwealth, 199 Va. 401, 100

S.E.2d 4 (1957), the Supreme Court held that a gas station lot

was not a highway within the meaning of the statutory definition.

In Prillaman, the defendant drove his car from the rear to the

front of a service station lot. The Court found that the lot was

not open to the public; instead it determined that "the premises

. . . were open to the public upon [the owner's] invitation. The

invitation was for private business purposes and for his benefit.

He had the absolute right at any time to terminate or limit this

invitation. He could close his doors and bar the public or any

person from vehicular travel on all or any part of his premises

at will. He had complete control over their use." Id. at

407-08, 100 S.E.2d at 8-9.

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 Unlike Prillaman, the Furman and Kay Management decisions

were not based solely on the statutory definition of highway.

Instead, these decisions employed a broader consideration of

public access and use. 1 However, while broadening the scope of

review, Furman and Kay Management did not reverse Prillaman, and

in fact Furman observed that Prillaman "discussed public

maintenance and common enjoyment in evaluating whether a way is a

`highway.'" Furman, 234 Va. at 440, 362 S.E.2d at 711.
Here, the facts are similar to those of Prillaman. In

accord with Prillaman's consideration of the public access and

use factors that controlled in Furman and Kay Management, we hold

that the lots traversed by Flinchum were not "highways" within

the statutory meaning of that term. The sporting goods' and

repair business' parking lots were not open to the public at all

times, but instead "were open to the public upon . . .

invitation." Prillaman, 199 Va. at 407, 100 S.E.2d at 8. This

intent was demonstrated by the posted "no trespassing" sign,

which clearly served to "prohibit . . . the entry of motor

vehicles operated by members of the public." Furman, 234 Va. at

441, 362 S.E.2d at 711. Further, either of the businesses "could

close [their] doors and bar the public or any person from

1
The Furman Court observed that "[a]lthough the Prillaman
Court discussed public maintenance and common enjoyment in
evaluating whether a way is a `highway,' that language is dicta.
The case was decided solely on the basis of the statutory
definition of `highway,' which requires only that the way be
`open to the use of the public for purposes of vehicular
travel.'" 234 Va. at 440, 362 S.E.2d at 711.

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vehicular travel on all or any part of [their] premises at will."

Prillaman, 199 Va. at 408, 100 S.E.2d at 9.

Therefore, we hold that the parking lots upon which Flinchum

traversed were improperly classified as "highways" under Code

§ 46.2-100, and accordingly, we reverse.

Reversed.

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