COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
NELSON DOLLAR SMITH
OPINION BY
v. Record No. 0181-97-1 JUDGE NELSON T. OVERTON
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
John K. Moore, Judge
William Brandon Baade for appellant.
Pamela A. Rumpz, Assistant Attorney General
(Richard Cullen, Attorney General;
Kimberley A. Whittle, Assistant Attorney
General, on brief), for appellee.
Nelson Dollar Smith ("defendant") was convicted in the
Circuit Court of the City of Virginia Beach of two counts of
distribution of cocaine, in violation of Code § 18.2-248, one
count of distribution of cocaine within 1,000 feet of a school,
in violation of Code § 18.2-255.2, and one count of conspiracy to
distribute cocaine, in violation of Code § 18.2-256. Defendant
contends the trial court erred when it: (1) ruled that a general
order regarding the filing of a "PD-256" confiscation form was
irrelevant, (2) ruled that the parking lot of a 7-Eleven
convenience store was a "property open to public use" under Code
§ 18.2-255.2 and (3) imposed a sentence in excess of that
recommended by the sentencing guidelines. Because we find no
error, we affirm.
We examine the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). So viewed, the evidence
indicates that on October 25, 1994, defendant sold cocaine with a
street value of fifty dollars to an undercover detective of the
City of Virginia Beach Police Department. The sale was
consummated in the parking lot of a 7-Eleven convenience store.
This parking lot was located across the street from Bayside High
School, well within the 1,000-foot limit proscribed by Code
§ 18.2-255.2. Following the arrest of a fellow narcotics dealer
in the same parking lot, defendant was also arrested.
At trial, defense counsel sought to cross-examine Detective
J.V. Lindsay, the case officer in charge of the investigation, as
to how he should file a "PD-256" confiscation form. This form is
used by the City of Virginia Beach police to keep track of the
weight of drugs seized from suspects after arrest. Specifically,
defense counsel questioned Detective Lindsay regarding a general
order requiring this form to be completed by the end of the shift
within which a suspect is arrested. The Commonwealth objected,
and the objection was sustained. The trial court ruled that
evidence of Detective Lindsay's actions with regard to the drugs
and the form used to track them were relevant, but whether he met
the time limit imposed by a general order not in evidence was
irrelevant. Defense counsel complied with the trial court's
ruling without proffer of the language of the general order.
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Defendant was later convicted by a jury and sentenced to
seventy-five years incarceration and an eight hundred thousand
dollar fine.
Defendant's first ascription of error is the trial court's
ruling that his questions regarding completion of the drug
confiscation form were irrelevant. He argues that Detective
Lindsay's alleged non-compliance with a general order indicates
that he may have purposefully misstated the weight of the drugs
or fabricated their existence. While "the right of an accused to
cross-examine prosecution witnesses to show bias or motivation,
when not abused, is absolute," Brandon v. Commonwealth, 22 Va.
App. 82, 88, 467 S.E.2d 859, 861 (1996), the record before us
provides insufficient grounds upon which to decide this issue.
[A] unilateral avowal of counsel, if
unchallenged, or a mutual stipulation of the
testimony expected constitutes a proper
proffer, and that absent such acquiescence or
stipulation, this Court will not consider an
error assigned to the rejection of testimony
unless such testimony has been given in the
absence of the jury and made a part of the
record in the manner prescribed by the Rules
of Court.
Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81
(1977). In the instant case, defense counsel never proffered the
general order which he claims was violated. In fact, Detective
Lindsay disputed that the order contained the time limit which
defendant claims it imposes. With nothing in the record
clarifying the substantive details of the order, and, therefore,
no indication of how far Detective Lindsay may have strayed from
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the order, we cannot say the trial court abused its discretion
when it stopped defense counsel from exploring the area. See
Mostyn v. Commonwealth, 14 Va. App. 920, 924, 420 S.E.2d 519, 521
(1992).
Defendant next contends the trial court erred in finding
that he sold cocaine within an area proscribed by Code
§ 18.2-255.2(A). The statute reads in pertinent part:
[i]t 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 at any time . . . (ii)
upon public property or any property open to
public use within 1,000 feet of such school
property.
"[W]ords and phrases used in a statute should be given their
ordinary and usually accepted meaning unless a different
intention is fairly manifest." Woolfolk v. Commonwealth, 18 Va.
App. 840, 847, 447 S.E.2d 530, 534 (1994) (citing Huffman v.
Kite, 198 Va. 196, 199, 93 S.E.2d 328, 331 (1956)). When the
words are clear and unambiguous we are also bound by the
following principle:
"While in the construction of statutes
the constant endeavor of the courts is to
ascertain and give effect to the intention of
the legislature, that intention must be
gathered from the words used, unless a
literal construction would involve a manifest
absurdity. Where the legislature has used
words of a plain and definite import the
courts cannot put upon them a construction
which amounts to holding the legislature did
not mean what it has actually expressed."
Weinberg v. Given, 252 Va. 221, 225-26, 476 S.E.2d 502, 504
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(1996) (quoting Barr v. Town & Country Properties Inc., 240 Va.
292, 295, 396 S.E.2d 672, 674 (1990)).
With these directives in mind, we look to the language of
the statute. The meaning of the phrase "property open to public
use" has never been interpreted by an appellate court, most
likely due to the relatively clear import of its language.
Defendant urges us to adopt the view that only property owned or
associated with state or local government is contemplated by the
law. His assertion, however, ignores the remainder of the
statutory language. Code § 18.2-255.2(A)(ii) states that "public
property or any property open to public use" is covered by the
statute. (Emphasis added). If the General Assembly had intended
to restrict application of the law to public property only, it
would not have included the words "or any property open to public
use." Defendant's interpretation requires us to hold that the
phrase "property open to public use" is redundant and
meaningless. This we will not do. See Jones v. Conwell, 227 Va.
176, 180, 314 S.E.2d 61, 64 (1984) ("The rules of statutory
interpretation argue against reading any legislative enactment in
a manner that will make a portion of it useless, repetitious, or
absurd.").
Because the meaning of "property open to public use" is not
simply limited to public property, we look to the intent of the
legislature to define those areas where the statute does apply.
It is no great difficulty to divine the intention of the General
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Assembly when it passed Code § 18.2-255.2. It has identified the
evil to society that drug use and distribution represent. This
drug culture is particularly destructive to the young and
impressionable members of our society. In an attempt to contain
this modern plague, both the General Assembly and Congress have
increased the penalties accruing to one who sells narcotics
"'[i]n such areas, where children congregate in large numbers
before, during, and after school sessions.'" Commonwealth v.
Burns, 240 Va. 171, 178, 395 S.E.2d 456, 459 (1990) (quoting
United States v. Nieves, 608 F. Supp. 1147, 1149-50 (S.D.N.Y.
1985)); See also 21 U.S.C. § 845a.
The convenience store outside of which defendant sold his
cocaine is the type of place where school age children
congregate. It is located directly across the street from a high
school in the City of Virginia Beach. There is no indication in
the record that that location was blocked, closed or in any way
inaccessible to the public. Indeed, the record suggests that the
participants to the drug transaction at issue had full access to
the property on several occasions with no interruption from the
owners of the establishment. Under these circumstances we hold
that this convenience store parking lot was "property open to
public use."
Defendant's third and final argument is one that has been
consistently advanced and equally as consistently rejected. He
contends the trial court abused its discretion by imposing the
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seventy-five-year sentence and eight hundred thousand dollar fine
that was recommended by the jury. The law on this issue could
not be more clear. This Court's review is limited to whether the
sentence fell within the permissible statutory range. Code
§ 19.2-298.01(F); see also Belcher v. Commonwealth, 17 Va. App.
44, 46, 435 S.E.2d 160, 161 (1993). Because all of defendant's
sentences and fines were within the statutory range, defendant's
argument is without support in law or in fact.
Because we find no error in the trial court, we affirm
defendant's convictions.
Affirmed.
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