Carson Ray Shenk v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 3, 1997
• Docket: 1165964
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff Argued at Alexandria, Virginia

CARSON RAY SHENK OPINION BY v. Record No. 1165-96-4 JUDGE CHARLES H. DUFF JUNE 3, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WARREN COUNTY Dennis L. Hupp, Judge

Christian J. Griffin, Assistant Public Defender, for appellant. Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Carson Ray Shenk (appellant) was convicted of a second

offense of driving after having been adjudicated an habitual

offender. He alleges on appeal that the trial court erred in

refusing to apply the habitual offender statute's "agricultural

purposes" exemption to his operation of a tractor to his home

from a residence where he previously had mowed the lawn. We

disagree and affirm the conviction.

I.

On August 29, 1995, Town of Front Royal Police Sergeant R.E.

Bukva received a report that appellant was operating a lawn

tractor on the streets. Bukva knew that appellant was an

habitual offender. Bukva first saw appellant standing in the

yard of a single family dwelling at the corner of Brown Avenue

and Cherrydale Avenue in Front Royal. The officer saw a lawn

tractor, hooked to a small wagon, parked in front of the

residence. Bukva parked his car where he could watch appellant. Within minutes, appellant began to drive the tractor on the

street.

Bukva saw appellant make a u-turn with the tractor on Brown

Avenue, then drive to Cherrydale Avenue. The officer drove to

appellant's house on Duncan Avenue and saw appellant drive the

tractor through his yard, toward the street. When appellant saw

Bukva, he put the tractor out of gear, jumped off the tractor,

and ran. The officer could not see where appellant ran. When

Bukva and another officer knocked on the door to appellant's

house, no one answered. Bukva testified that appellant drove the

tractor 300 to 400 yards. Bukva testified that the area where appellant drove the

tractor is residential, containing single and multi-family

dwellings. Bukva testified that the area contains no farms, and

he did not see even a garden at appellant's residence.

The Commonwealth introduced records which established that

appellant had been adjudicated an habitual offender and

previously had been convicted of driving after having been so

adjudicated. Dean Reynolds testified on behalf of appellant that

appellant had mowed Reynolds' lawn the day before and had

returned on August 29 to retrieve the lawn mower.

At appellant's bench trial, the trial judge found that

appellant drove a tractor on the public highway, that he had been

adjudicated an habitual offender, and that he previously had been

convicted for violating that order of adjudication. The judge

also found that appellant was not moving the tractor from one

tract of land used for agricultural purposes to another tract of

-2- land used for agricultural purposes. He noted, "According to the

Statute, it is not the nature of the activity at the time but the

nature of the use of the land at the time. What the land is

commonly used for." The judge refused to apply the statutory

exemption.

II.

Code § 46.2-357 provides that it is unlawful for one who has

been adjudicated an habitual offender to drive a motor vehicle or

self-propelled machinery or equipment on the highways during the

pendency of the revocation of his driving privilege. The statute

also provides the following exemption: However, the revocation determination shall not prohibit the person from operating any farm tractor on the highways when it is necessary to move the tractor from one tract of land used for agricultural purposes to another tract of land used for agricultural purposes, provided that the distance between the said tracts of land is no more than five miles.

The parties do not dispute that appellant was operating a

"farm tractor," within the meaning of the statute. 1 Nor do they

contest that appellant operated the vehicle for less than five

miles. Rather, the sole issue before this Court is whether

appellant was moving the tractor from "one tract of land used for

agricultural purposes to another tract of land used for

agricultural purposes."

1 Code § 46.2-100 defines "farm tractor" as "every motor vehicle designed and used as a farm, agricultural, or horticultural implement for drawing plows, mowing machines, and other farm, agricultural, or horticultural machinery and implements including self-propelled mowers designed and used for mowing lawns."

-3- In Newton v. Commonwealth, 21 Va. App. 86, 462 S.E.2d 117

(1995), we held:

Principles of statutory construction mandate

that we "give effect to the legislative

intent." While penal statutes must be

strictly construed against the Commonwealth,

"[t]he plain, obvious, and rational meaning

of a statute is always preferred to any

curious, narrow or strained construction; a

statute should never be construed so that it

leads to absurd results." Id. at 89, 462 S.E.2d at 119 (citations omitted). Accord Seke v.

Commonwealth, 24 Va. App. 318, 322, 482 S.E.2d 88, 90 (1997).

While the legislature did not define the term "agricultural

purposes" in Title 46.2, we may look to other provisions of the

Code for assistance in defining the term. See Branch v.

Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 425 (1992)

("[b]ecause the Code of Virginia is one body of law, other Code

sections using the same phraseology may be consulted in

determining the meaning of a statute").

Code § 13.1-313, concerning Agricultural Cooperative

Associations, defines "agricultural products" as "livestock and

livestock products, dairy products, poultry and poultry products,

seeds, nuts, ground stock, horticultural, floricultural,

viticultural, forestry, bee and any and all kinds of farm

products." Code § 18.2-121.2, which is entitled, "Trespass by

spotlight on agricultural land," prohibits the willful use of a

-4- spotlight or similar apparatus to "cast a light upon private

property used for livestock or crops." Moreover, according to

Black's Law Dictionary 68 (6th ed. 1990), "agricultural" pertains

to land where farming is the "leading pursuit."

III.

The evidence in this case established that appellant drove

the tractor in a residential area of the Town of Front Royal.

Sergeant Bukva described the area as consisting of single and

multi-family dwellings. He stated that there were no farms in

the area. The trial judge rejected appellant's argument that his

operation of the tractor

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