                               COURT OF APPEALS OF VIRGINIA


Present: Judges Powell, Alston and Senior Judge Annunziata
Argued at Alexandria, Virginia


JEAN PAUL ENRIQUEZ
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0463-10-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                   APRIL 5, 2011
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                 Lisa B. Kemler, Judge

                 Alberto R. Salvado (Salvado, Salvado & Salvado, PC, on brief), for
                 appellant.

                 Gregory W. Franklin, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       On appeal from his conviction of operating a motor vehicle while under the influence of

alcohol in violation of Code § 18.2-266, Jean Paul Enriquez contends the trial court erred in

finding the evidence sufficient to prove he drove or operated the vehicle in which the police

found him. We affirm the judgment of the trial court.

                                             Background

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).

       Thomas Feeney, a parking enforcement officer, found appellant’s car illegally parked at a

bus stop around 3:12 a.m. on September 18, 2009, and issued a parking ticket. When Feeney

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
attempted to place the ticket on the windshield, he saw appellant inside the car, apparently

asleep. Feeney repeatedly tried but was unable to awaken or arouse appellant, so he contacted

the police. Feeney recalled the “vehicle’s radio was playing” at the time.

       Officer Asonglefac responded to the scene and investigated. He testified that the keys

were in the ignition, he “heard the [car] radio playing and [he] could see the light from the radio

area.” Asonglefac eventually awakened and questioned appellant. Appellant said he was there

to visit his girlfriend, but he was unable to provide her address. Although Asonglefac detected a

strong odor of alcohol and marijuana coming from the car, appellant told Asonglefac he had not

been drinking. After having appellant exit the car to perform sobriety tests, appellant told

Asonglefac he consumed a Long Island Iced Tea an hour earlier. Asonglefac could not recall if

the ignition key was in the on or off position, but when asked if he turned off the radio, he

testified, “When the keys were removed from the ignition, the radio went off.”

       The sole issue on appeal is whether appellant was “operating” the vehicle by having the

keys in the ignition and the car radio illuminated and playing music.

                                             Discussion

       This case is controlled by the Supreme Court’s recent decision in Nelson v.

Commonwealth, 281 Va. 212, ___ S.E.2d ___ (2011), and cases cited therein.

       In Nelson, the Supreme Court affirmed the defendant’s conviction for driving while

intoxicated. Under facts substantially similar to those in this case, police officers first saw

Nelson asleep or unconscious in his car. Although the car’s engine was not running, the key was

in the ignition and was in the “on or accessory position,” the radio inside the vehicle was on, and

the officers could hear music playing. Id. at 214, ___ S.E.2d at ___.

       Nelson argued the Commonwealth failed to prove he was operating the vehicle. The

Supreme Court rejected that argument and held that turning the ignition key to the accessory

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position so as to activate the radio constituted “manipulating the . . . electrical equipment of the

vehicle.” Id. at 219, ___ S.E.2d at ___. The Supreme Court applied the following rationale to

support its decision:

               “Operating” means “engaging the machinery of the vehicle which
               alone, or in sequence, will activate the motive power of the
               vehicle.” [Stevenson v. City of Falls Church, 243 Va. 434, 438,
               416 S.E.2d 435, 438 (1992)] (Emphasis added.) Manipulating the
               electrical equipment was one step between the “off” position and
               the point at which the motive power would be activated. While
               Nelson’s action in turning the key to the “on” or “accessory”
               position of the ignition did not alone activate the motive power, it
               was an action taken “in sequence” up to the point of activation,
               making him the operator of the vehicle within the meaning of Code
               § 18.2-266.

Id. at 219, ___ S.E.2d at ___.

       In Nelson, the Supreme Court distinguished its holding in Stevenson, in which it reversed

Stevenson’s DUI conviction. In Stevenson, police found the defendant asleep behind the

steering wheel of a car located on a convenience store parking lot. Stevenson’s engine and all

other mechanical and electrical parts were turned off and, although the key was in the ignition,

the arresting officer could not recall whether the key was in the “on” or the “off” position. 243

Va. at 435, 416 S.E.2d at 436.

       We find this case distinguishable from Stevenson, in which no electrical or mechanical

equipment was on or engaged, and more consistent with the reasoning employed in Nelson, in

which a key placed in the car’s ignition engaged or caused the radio to play. Here, appellant had

the key in the ignition causing the radio to illuminate and play. When the police removed the

key, the radio stopped playing. Thus, irrespective whether the Commonwealth established the

key’s exact position in the ignition, the key’s placement and presence in the ignition activating

the radio proved that appellant manipulated and “engaged” the car’s electrical equipment, an

action, that “‘in sequence, will activate the motive power of the vehicle’ . . . making him the


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operator of the vehicle within the meaning of Code § 18.2-266.” Nelson, 281 Va. at 219, ___

S.E.2d at ___ (quoting Stevenson, 243 Va. at 438, 416 S.E.2d at 438). Accordingly, we affirm

appellant's conviction.

                                                                                     Affirmed.




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Powell, J., dissenting.

       Unlike the majority, I do not believe that Nelson v. Commonwealth, 281 Va. 212, ____

S.E.2d ____ (2011), is dispositive of this case. Instead, I think that the facts of this case are more

similar to Stevenson v. City of Falls Church, 243 Va. 434, 416 S.E.2d 435 (1992). Therefore, I

respectfully dissent and would reverse appellant’s conviction for driving while intoxicated,

second offense within five years, and dismiss his indictment.

       As the majority correctly states, the Supreme Court of Virginia held in Nelson that

                  “Operating” means “engaging the machinery of the vehicle which
                  alone, or in sequence, will activate the motive power of the
                  vehicle.” [Stevenson, 243 Va. at 438, 416 S.E.2d at 438]
                  (Emphasis added.) Manipulating the electrical equipment was one
                  step between the “off” position and the point at which the motive
                  power would be activated. While Nelson’s action in turning the
                  key to the “on” or “accessory” position of the ignition did not
                  alone activate the motive power, it was an action taken “in
                  sequence” up to the point of activation, making him the operator of
                  the vehicle within the meaning of Code § 18.2-266.

Id. at 219, ____ at ____. The majority then concludes that “the key’s placement and presence in

the ignition activating the radio proved that appellant manipulated and ‘engaged’ the car’s

electrical equipment,” which constituted operating the vehicle under Code § 18.2-266. This

conclusion is not supported by the evidence in the record.

       As previously stated, I believe that the facts of this case are more similar to those in

Stevenson, 243 Va. at 435, 416 S.E.2d at 436, where the evidence proved that “[t]he key was in

the ignition but it was not recalled whether the key was in the ‘on’ or ‘off’ position. The engine

of the motor vehicle, and all of its other mechanical and electrical parts were off.” There, the

Supreme Court of Virginia held that because “[i]t was ‘not recalled whether the key was in the

“on” or “off” position[,]’” “on appeal, we must assume that the key was in the off position.” Id.

at 438, 416 S.E.2d at 438. Reasoning from that assumption, the Supreme Court of Virginia went

on to hold that
                                                 -5-
               [b]ecause the presence of the key in the ignition switch in the off
               position did not engage the mechanical or electrical equipment of
               Stevenson’s car, Stevenson did not “drive or operate” the car
               within the meaning of the statutes that were incorporated by
               reference in the Falls Church ordinance.

Id.

       Both Nelson and Stevenson have similarities to and differences from the case at hand. In

Nelson, the fact that the radio was playing was an important factor, but the dispositive fact

appears to be the position of the key in the ignition. As the Supreme Court of Virginia stated,

               while Nelson’s action in turning the key to the “on” or “accessory”
               position of the ignition did not alone activate the motive power, it
               was an action taken “in sequence” up to the point of activation,
               making him the operator of the vehicle within the meaning of Code
               § 18.2-266.

Nelson, 281 Va. at 219, ____ S.E.2d at ____. While the Court noted, significantly, that the radio

was playing, it did so in the context of the position of the key. Id. at 217-19, ___ S.E.2d at ___.

Specifically, the Supreme Court stated that the officer’s “testimony left no doubt it was the key,

whether in an ‘on’ position or an ‘accessory’ position, that turned on the ‘factory mounted

radio.’” Id. at 217, ___ S.E.2d at ___. A close read of Nelson indicates that while the fact that

the radio was playing is important, it is the fact that the “factory mounted radio” was playing due

to the position of the key in the “on” or “accessory” position that was dispositive.

       By contrast, Stevenson differs from the facts at bar because none of the mechanical or

electrical equipment of the car was engaged. Stevenson, 243 Va. at 435, 416 S.E.2d at 436.

However, again, the focal point of the decision was the position of the key. There, the Supreme

Court of Virginia ruled that because the officer could not recall whether the key was in the “on”

or “off” position, they had to assume the key was in the “off” position. Id. at 438, 416 S.E.2d at

438. As in Stevenson, because the officer in this case does not know whether the key was in the

“on” or “off” position, we must assume that it was in the “off” position.


                                                -6-
       The question then becomes whether the fact that the radio was playing and that it stopped

when the key was removed, is sufficient to overcome that assumption. We must further factor in

the fact that unlike in Nelson, there is no evidence of whether the radio was a factory installed

radio or an after-market one. Indeed, the officer did not know if the radio was on the same

power supply as the vehicle. While I recognize that there is “no burden on the Commonwealth

to negate what ‘could have been’ or what was a ‘possibility[,]’” the Commonwealth must prove

every element of the offense. Nelson, 281 Va. at 217-18, ____ S.E.2d at ___.

       Absent some other evidence as to the type of radio, either factory-installed or

after-market, or that the radio is not one that continues to play after the key has been turned to

“off” until the key is removed, I cannot find that the Commonwealth has carried its burden

beyond a reasonable doubt. Clearly, while the key being in the “on” or “accessory” position with

the radio playing is sufficient for a conviction, I would find that the key being in an assumed

“off” position with the radio playing is not, as there is insufficient evidence that appellant took

an action beyond placing the key in the ignition that “in sequence” will activate the motive

power of the vehicle, making him the operator of the vehicle within Code § 18.2-266.

       Therefore, for the foregoing reasons, I disagree with the majority that Stevenson is

distinguishable and that Nelson controls. I would hold that evidence that the car radio was

playing without evidence of where the key was is insufficient to prove “operating,” and I would

reverse appellant’s conviction.




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