                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia


MICHAEL E. COPELAND

v.        Record No. 0654-95-2          MEMORANDUM OPINION *
                                     BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                  MARCH 12, 1996


           FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
                     Thomas V. Warren, Judge
          C. David Whaley (Elizabeth Dashiell Scher;
          Morchower, Luxton and Whaley, on brief), for
          appellant.

          Robert B. Beasley, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     In this appeal by Michael E. Copeland (appellant) from a

judgment of the Circuit Court of Dinwiddie County (trial court)

that approved his jury trial conviction "of operating a motor

vehicle after his privilege to drive had been suspended or

revoked," the sole issue presented is whether the evidence is

sufficient to support the conviction.

     Viewing the evidence in the light most favorable to the

Commonwealth, the record discloses that at approximately 1:30 in

the afternoon of January 30, 1994, Virginia State Trooper Mark

Haygood (Haygood) was patrolling the parking lot of a rest stop

off Interstate 85 in Dinwiddie County.   At that time, Haygood

observed appellant seated behind the wheel of a Cadillac
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
automobile that was parked on the lot.   The Cadillac's motor was

not running and there was no key in the ignition switch.     There

were no other people in the vicinity of the vehicle.

     Haygood drove approximately twenty-five yards past the

Cadillac then observed appellant exit and walk around the front

of the vehicle.   Haygood returned to where appellant was,

approached him, and engaged him in a casual conversation.       At

Haygood's request, appellant produced St. Paul's College and

Virginia identification cards, one of which Haygood used to check

for any motor vehicle violations.   Haygood learned that

appellant's license to drive had been suspended or revoked and

cautioned appellant not to drive.   Nothing in the record

discloses that appellant disregarded that instruction.     In

addition, nothing in the record reveals who owned the Cadillac or

to whom its license plates had been issued.   Appellant made no

incriminating statement.
     Haygood remained on the parking lot approximately forty

minutes during which time he saw no other person approach the

Cadillac or enter the lot on which the vehicle was parked.

Haygood left the parking lot without charging appellant with any

driving offense; however, the next day he caused a warrant of

arrest to be issued against appellant, charging that appellant

"did unlawfully in violation of Section 46.2-301, Code of

Virginia: Operate a motor vehicle on a public highway in this

Commonwealth to wit: Drive on Suspended or revoked license, 2nd




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or Subsequent offense."   In relevant part, Code 46.2-301

provides:
              B. Except as provided in §§ 46.2-304 and
            46.2-357, no resident or nonresident (i)
            whose driver's license, learner's permit, or
            privilege to drive a motor vehicle has been
            suspended or revoked or (ii) who has been
            directed not to drive by any court, by the
            Commissioner, or by operation of law pursuant
            to this title or (iii) who has been
            forbidden, as prescribed by law, by the
            Commissioner, the State Corporation
            Commission, the Commonwealth Transportation
            Commissioner, any court, or the
            Superintendent of State Police, to operate a
            motor vehicle in the Commonwealth shall
            thereafter drive any motor vehicle or any
            self-propelled machinery or equipment on any
            highway in the Commonwealth until the period
            of such suspension or revocation has
            terminated. A clerk's notice of suspension
            of license for failure to pay fines or costs
            given in accordance with § 46.2-395 shall be
            sufficient notice for the purpose of
            maintaining a conviction under this section.
             For the purposes of this section, the phrase
            "motor vehicle or any self-propelled
            machinery or equipment" shall not include
            mopeds.

Code § 46.2-301(B).
          Penal statutes are to be strictly construed
          against the Commonwealth and in favor of the
          citizen's liberty. . . . Such statutes may
          not be extended by implication; they must be
          applied to cases clearly described by the
          language used. . . . And the accused is
          entitled to the benefit of any reasonable
          doubt about the construction of a criminal
          statute.


Stevenson v. City of Falls Church, 243 Va. 434, 436, 416 S.E.2d

435, 437 (1992) (quoting Martin v. Commonwealth, 224 Va. 298,

300-01, 295 S.E.2d 890, 892 (1982)).    Code § 46.2-301(B) requires



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that the Commonwealth prove beyond a reasonable doubt that

appellant operated a motor vehicle on a highway in the

Commonwealth.   There is no evidence that appellant drove the

Cadillac onto or off of the parking lot.    There appears to be

some conflict in the cases as to whether if there is a key in the

ignition, and the defendant is seated behind the wheel, the

switch needs to be in the "ON" position.    Here, it has not been

shown that a key was in the ignition or even whether appellant

had keys that would fit the switch.    Therefore, not only has it

not been shown that appellant "drove" the Cadillac, it has not

been shown whether he possessed the capability of "operating" the

vehicle.
     For the reasons stated, we hold that the Commonwealth has

not met its burden to prove beyond a reasonable doubt that

appellant drove or operated a motor vehicle after his license to

drive had been suspended or revoked.

     Accordingly, the judgment of the trial court is reversed and

the charge dismissed.

                                           Reversed and dismissed.




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