                  COURT OF APPEALS OF VIRGINIA


Present: Judge Humphreys, Senior Judges Hodges and Overton
Argued at Chesapeake, Virginia


GEORGE LEONARD UNDERWOOD
                                           MEMORANDUM OPINION * BY
v.   Record No. 1805-99-2                 JUDGE ROBERT J. HUMPHREYS
                                                JUNE 13, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     Timothy J. Hauler, Judge

          Aubrey R. Bowles, IV (Bowles & Bowles, on
          brief), for appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     The appellant, George Leonard Underwood, was convicted in a

bench trial of driving a motor vehicle "on the highways of the

Commonwealth" after being declared a habitual offender pursuant

to Code § 46.2-357(A).     At trial, Underwood stipulated that he

drove a motor vehicle and that, at the time he did so, his

privilege to drive had been suspended pursuant to an order

declaring him to be a habitual offender.    The sole issue for the

trial court and for this Court on appeal is whether Underwood's

driving of a motor vehicle took place on a "highway of the




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth."   For the following reasons, we affirm Underwood's

conviction.

     A police officer observed appellant driving on a marked

roadway of Chesterfield Towne Center, a shopping center.   When

questioned by police, appellant admitted driving but said, "I

didn't think you could catch me in a parking lot."   The roadway

was marked for two lanes of travel and was controlled with stop

signs.

     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.

     Underwood argues that the roadway through Chesterfield

Towne Center is not a "way or place open to the use of the

public for vehicular travel," but rather private property

subject to public access being restricted by its owner.

     "[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)).

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      The Supreme Court of Virginia in Prillaman v. Commonwealth,

199 Va. 401, 100 S.E.2d 4 (1957), found that where premises are

open only for private business purposes and where the owner has

complete control over their use, a parking lot is not a public

highway.

      In Kay Management, 220 Va. at 831-32, 263 S.E.2d at 401-02,

the Supreme Court of Virginia considered whether motor vehicle

laws applied to roads in an apartment complex for purposes of

recovery in a personal injury action.   In distinguishing the facts

from those in Prillaman, the Court held that "the evidence of

accessibility to the public for free and unrestricted use gave

rise to a prima facie presumption that the streets of [the

apartment complex] were highways within the definition of [the

Virginia Code]."   Id. at 832, 263 S.E.2d at 402.   The Court found

that the defendant was unable to rebut this presumption by merely

showing that the tenants had primary access to the property.    See

id.   The Court found that the streets were neither used

exclusively by the owners nor limited to those to whom the owner

had granted permission.   See id.

      In Furman, the Supreme Court considered the question again in

a case involving an office complex parking lot where privately

owned roads in and surrounding a parking area "have always been

open to the public 24 hours a day, seven days a week" and

"[a]ccess by the public has never been denied by guards, gates, or


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any other device."   234 Va. at 440-41, 362 S.E.2d at 711.   The

Furman Court found that even though the lot was posted with signs

stating "Private Property, No Soliciting," the lot was a highway

within the statutory definition because public access was "full

and unrestricted."   See id. at 441, 362 S.E.2d at 711.

     In Flinchum v. Commonwealth, 24 Va. App. 734, 485 S.E.2d

630 (1997), and again in Roberts v. Commonwealth, 28 Va. App.

401, 504 S.E.2d 890 (1998), we held that a parking lot

containing no marked lanes of traffic or traffic control signs,

was not a "highway of the Commonwealth."

     In the present case, the Commonwealth's evidence was

sufficient to prove beyond a reasonable doubt that appellant

drove on a road within a parking lot, which although privately

owned, was marked as a two-lane roadway, was governed by signs

for traffic control, and was open to the public at all times.

Therefore, we find that the trial court did not err in finding

that appellant drove upon a "highway of the Commonwealth," and

we affirm appellant's conviction of driving after being declared

a habitual offender.

                                              Affirmed.




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