                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and Senior Judge Annunziata
UNPUBLISHED


              Argued at Salem, Virginia


              TERRY WAYNE TURNER
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 1197-12-3                                    JUDGE RANDOLPH A. BEALES
                                                                                  OCTOBER 8, 2013
              CITY OF HARRISONBURG


                                 FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
                                                James V. Lane, Judge

                               R. Shannon Kite (Cook Attorneys, P.C., on brief), for appellant.

                               G. Chris Brown, City of Harrisonburg Attorney, for appellee.


                     Terry Wayne Turner (appellant) appeals his conviction under § 10-3-13 of the Code of the

              City of Harrisonburg (the City Code) for committing a zoning violation by storing four inoperable

              vehicles on real property owned by appellant’s mother (and occupied by appellant). Appellant

              argues that the trial court erred in convicting him of the zoning ordinance violation because he

              claims that the evidence was insufficient to prove that appellant owned or leased the land at issue in

              this case. We hold that this zoning ordinance was applicable to appellant, and we affirm his

              conviction for the following reasons.

                                                         I. BACKGROUND

                     We consider the evidence on appeal “‘in the light most favorable to the [City of

              Harrisonburg (the City)], as we must since it was the prevailing party’” in the trial court. Beasley v.

              Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v.

              Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence is that, at

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the time of the events leading up to this appeal, appellant and his mother were both living in a

residence located in the City of Harrisonburg, Virginia (the property). Appellant’s mother is the

owner of the property, and appellant is the owner of the four inoperable vehicles that he was storing

on the property. Storing inoperable vehicles on property is not a permitted use of property under

§ 10-3-39 of the City Code, which reads as follows:

                The following uses are permitted by right: (1) Any use permitted by
                right in the R-1 single-family residential district. (2) Duplex
                dwelling units with limitations as required by area and dimensional
                regulations (section 10-3-41 below). (3) Accessory buildings and
                uses clearly incidental to the above. (Refer to section 10-3-114,
                Accessory Buildings). (4) Public uses.1

        At trial, Ms. Nancy Stone (Stone), a City zoning inspector, testified that the following chain

of events occurred before the City charged appellant with a zoning violation. The City sent a letter

to appellant’s mother concerning the alleged zoning violation, and neither appellant’s mother nor

appellant took any action in response to that letter. The City once again contacted appellant’s

mother regarding the removal of the vehicles, and Stone met with appellant’s mother regarding the

removal of the vehicles. Again, neither appellant’s mother nor appellant took any action. The

record indicates that the City then filed a criminal complaint against both appellant and his mother.

The charge against appellant’s mother, however, appears to have been dismissed (or dropped by the

City), as there is nothing in the record before us to indicate that a court heard a case against her.

        At trial, appellant argued that he was not a proper defendant because he was not the owner

of the property, he did not lease the property, he did not have a right of ownership or a right of

occupancy to the property, and he resided at the property at the discretion and permission of his


        1
          Section 10-3-39 of the City Code is not part of the record on appeal, but this Court may
take judicial notice of § 10-3-39 of the City Code. See Va. R. Evid. 2:202 (“[w]henever, in any
civil or criminal case, it becomes necessary to ascertain what the law, statutory, administrative,
or otherwise, of this Commonwealth, of another state, of the United States, of another country, or
of any political subdivision or agency of the same . . . the court shall take judicial notice thereof
whether specifically pleaded or not.”).
                                                -2-
mother. Appellant further argued that, because zoning regulations apply to real property – and not

to personal property, appellant’s mother, not he, was the proper defendant. The City argued at trial

that, because appellant was the owner of the vehicles, he was responsible for the maintenance,

upkeep, and storage of those vehicles.

        The trial court found appellant “guilty of a violation of zoning,” and its final order entered

the conviction and sentence under § 10-3-13 of the City Code. Section 10-3-13 states, “Any person,

firm, or corporation found in violation of any provision of this chapter[2], upon conviction shall be

guilty of a class 1 misdemeanor.” The trial court sentenced appellant to ninety days incarceration

with seventy-five days suspended, placed appellant on probation for six months, and ordered

appellant to remove the vehicles from the property.

                                             II. ANALYSIS

        In his assignment of error, appellant challenges the sufficiency of the evidence supporting

his conviction. When considering the sufficiency of the evidence on appeal, “a reviewing court

does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387

(2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the

light most favorable to the [City], as we must since it was the prevailing party in the trial court,”

Riner, 268 Va. at 330, 601 S.E.2d at 574, “[w]e must instead ask whether ‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt,’” Crowder, 41

Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584

S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657

S.E.2d 499, 502 (2008). “This familiar standard gives full play to the responsibility of the trier of




        2
            “[T]his chapter” refers to Chapter 3, the zoning chapter of the City Code.
                                                   -3-
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.

        On appeal, appellant concedes that the property was, “in fact, out of compliance” with

§ 10-3-39 of the City Code. Nonetheless, appellant argues on appeal that, even though the property

was not in compliance with the City Code (due to appellant’s storing of his four inoperable vehicles

on the property), the evidence is not sufficient to punish him for a zoning violation under § 10-3-13

of the City Code because the City never produced any evidence that appellant is the property owner

or that he has any lease or possessory interest in the property. Thus, appellant’s assignment of error

is premised on his assertion that only the property owner (or lessee), and not any other person who

takes the action that brings the property out of compliance with the zoning regulations, can be held

liable for a zoning violation.

        To support his argument, appellant contends that the zoning ordinance at issue applies only

to real property, and not to personal property, and therefore does not apply to him under these facts.

In other words, because appellant owns the personal property (i.e., the cars) on the property, but not

the real property itself, appellant asserts that he cannot be punished for a zoning violation.3

Appellant cites two other provisions within Chapter 3 of Title 10 of the City Code as support for this

assertion. Specifically, § 10-3-2 (“Application”), states, in relevant part, that “[t]his chapter shall

apply to the incorporated territory of the City of Harrisonburg, Virginia.” Section 10-3-3


        3
          Appellant also argued on brief that because he is an invitee on the property, his mother,
as owner of the property, has a duty to maintain the premises. Based on appellant’s written
statement of facts, it does not appear that appellant argued this point at trial. Thus, Rule 5A:18,
which provides, in relevant part, that “[n]o ruling of the trial court . . . will be considered as a
basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice,” precludes this Court from considering this argument on appeal. Appellant has not
argued that either the ends of justice exception or the good cause exception to Rule 5A:18 should
apply, and this Court will not invoke any exceptions to Rule 5A:18 sua sponte. See Beasley, 60
Va. App. at 399, 728 S.E.2d at 508 (citing Williams v. Commonwealth, 57 Va. App. 341, 347,
702 S.E.2d 260, 263 (2010)).
                                                 -4-
(“Purpose”), states, in relevant part, that the purpose of the chapter is “for the appropriate and best

use of land” as well as “for the appropriate use and occupancy of buildings . . . .” Thus, appellant

argues, the zoning ordinance does not apply to him because the language of §§ 10-3-2 and 10-3-3 of

the City Code suggests that the zoning chapter covers only real property—territory, land, and

buildings—but not personal property. However, these sections do not state that only property

owners or lessees can be convicted of a zoning violation and do not suggest that improperly stored

personal property cannot cause a zoning violation.

        We disagree with appellant’s argument that he cannot be convicted of a zoning ordinance

violation under Chapter 3 of the City Code simply because he is not the owner (or lessee) of the

property. Contrary to appellant’s argument, the plain language of § 10-3-13 of the City Code

specifically provides, “Any person . . . found in violation of any provision of this chapter . . . shall be

guilty of a class 1 misdemeanor.” (Emphasis added). The record on appeal reflects that the trial

court’s final order found appellant guilty of a zoning violation and entered appellant’s conviction

and sentence under § 10-3-13 of the City Code. The trial court did not err in finding that this

provision was applicable to appellant.

        “When an ordinance is plain and unambiguous, there is no room for interpretation or

construction; the plain meaning and intent of the ordinance must be given it.” Board of Zoning

Appeals v. 852 L.L.C., 257 Va. 485, 489, 514 S.E.2d 767, 769 (1999) (citing Donovan v. Board of

Zoning Appeals, 251 Va. 271, 274, 467 S.E.2d 808, 810 (1996); McClung v. County of Henrico,

200 Va. 870, 875, 108 S.E.2d 513, 516 (1959)). Nothing in § 10-3-13 of the City Code limits the

prosecution of violations of zoning ordinances within Chapter 3 to the owners of the real property.

If the terms of § 10-3-13 of the City Code were limited to owners of property subject to zoning

ordinances, then any person could violate a zoning ordinance, and potentially be immune from

prosecution, so long as the violation took place on a piece of property that did not belong to the

                                                   -5-
person who committed the violation. The Harrisonburg City Council could not have intended this

result. Contrary to appellant’s argument on appeal, it does not matter that appellant’s mother

permitted appellant to use and occupy the property without a formal lease, given the plain language

of the City Code. Section 10-3-12, which immediately precedes § 10-3-13, directs, “No building or

land shall be used or occupied . . . except in conformity with the regulations” enacted in the City

Code. Because appellant used and occupied portions of the property to store his inoperable vehicles

there, the City Code applied to him.

       Here, appellant concedes on appeal that the property at issue in this case was in violation of

a provision of Chapter 3 of the City Code – i.e., § 10-3-39. In light of appellant’s concession, the

evidence clearly establishes that the storage of appellant’s own inoperable vehicles caused the

violation of that zoning ordinance. “[I]t is well established that the choice of offenses for which a

criminal defendant will be charged is within the [prosecutor’s] discretion.’” Clark v.

Commonwealth, 41 Va. App. 377, 391, 585 S.E.2d 355, 362 (2003) (quoting Kauffmann v.

Commonwealth, 8 Va. App. 400, 410, 382 S.E.2d 279, 284 (1989)). While the City could perhaps

have also prosecuted the owner of the property as well, the City, in its discretion, ultimately chose

only to prosecute appellant, who used and occupied the property. The record establishes that

appellant was a proper defendant in this case. The trial court specifically found appellant “guilty of

a violation of zoning,” and that finding certainly is supported by credible evidence in the record.

See Code § 8.01-680. Therefore, appellant was properly convicted and punished under § 10-3-13 of

the City Code, as a rational factfinder could conclude that the evidence at trial was indeed sufficient

beyond a reasonable doubt.

                                           III. CONCLUSION

       Appellant conceded that the property was not in compliance with § 10-3-39. The trial court

found appellant “guilty of a violation of zoning,” and that finding is supported by the evidence

                                                 -6-
establishing that appellant’s impermissible storage of his four inoperable vehicles on the property

caused the zoning violation. Given that “[a]ny person” who is “found in violation of any provision”

of Chapter 3 of the City Code is subject to conviction of an offense that is a Class 1 misdemeanor,

the trial court did not err when it convicted appellant of the zoning violation. Accordingly, for the

foregoing reasons, we affirm the judgment of the trial court.

                                                                                             Affirmed.




                                                 -7-
