                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Senior Judge Frank
UNPUBLISHED


              Argued by teleconference


              JOSEPH MICHAEL BISTA
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 0432-15-1                                    JUDGE ROBERT P. FRANK
                                                                                DECEMBER 15, 2015
              COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                                           AND COUNTY OF JAMES CITY
                                             Michael E. McGinty, Judge

                                J. Terry Osborne for appellant.

                                Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellee.


                      Joseph Michael Bista, appellant, was convicted in a bench trial of (a) driving under the

              influence, third offense, in violation of Code § 18.2-266, (b) driving while his license was revoked

              and while in violation of Code § 18.2-266 after having been previously convicted of violating Code

              § 18.2-266 in violation of Code § 46.2-391(D)(2)(a)(ii), and (c) refusing to have a sample of his

              breath or blood taken for testing, subsequent offense, in violation of Code § 18.2-268.3. On appeal,

              appellant maintains that the Circuit Court for the City of Williamsburg had no venue to try his cases.

              For the reasons stated, we affirm his convictions.

                                                         BACKGROUND

                      The facts are not in controversy. On May 13, 2014, appellant was at a convenience store

              located in York County where he was observed by a City of Williamsburg police officer. The

              officer estimated that the store was “six-tenths of a mile outside the [Williamsburg] city line.”

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Ultimately, appellant was arrested at the convenience store in York County for driving while

intoxicated and driving with a revoked license. He was transported to the Virginia Peninsula

Regional Jail where he refused to submit to a breath test. The trial court found that the City of

Williamsburg was the proper venue for the charges and convicted appellant of the charges.

       This appeal followed.

                                             ANALYSIS

       To resolve proper venue in this case, we must interpret Code §§ 19.2-249 and 19.2-250. We

first note that generally, venue lies where the offense took place. Code § 19.2-244.1 However,

Code §§ 19.2-249 and 19.2-250 provide exceptions by extending venue in certain circumstances.

                        An offense committed on the boundary of two counties, or
               on the boundary of two cities, or on the boundary of a county and
               city, or within 300 yards thereof, may be alleged to have been
               committed, and may be prosecuted and punished, in either county,
               in either city, or the county or city, and any sheriff, deputy sheriff,
               or other police officer shall have jurisdiction to make arrests and
               preserve the peace for a like distance on either side of the boundary
               line between such counties, such cities, or such county and city.

Code § 19.2-249.

                       A. Notwithstanding any other provision of this article and
               except as provided in subsection B hereof, the jurisdiction of the
               corporate authorities of each town or city, in criminal cases
               involving offenses against the Commonwealth, shall extend within
               the Commonwealth one mile beyond the corporate limits of such
               town or city; except that such jurisdiction of the corporate
               authorities of towns situated in counties having a density of
               population in excess of 300 inhabitants per square mile, or in
               counties adjacent to cities having a population of 170,000 or more,
               shall extend for 300 yards beyond the corporate limits of such
               town or, in the case of the criminal jurisdiction of an adjacent
               county, for 300 yards within such town.

                       B. Notwithstanding any other provision of this article, the
               jurisdiction of the authorities of Chesterfield County and Henrico

       1
         Code § 19.2-244(A) provides, “Except as otherwise provided by law, the prosecution of
a criminal case shall be had in the county or city in which the offense was committed.”
                                                -2-
               County, in criminal cases involving offenses against the
               Commonwealth, shall extend one mile beyond the limits of such
               county into the City of Richmond.

Code § 19.2-250.

       “Under well-established principles, an issue of statutory interpretation is a pure question

of law which we review de novo.” Conyers v. Martial Arts World, 273 Va. 96, 104, 639 S.E.2d

174, 178 (2007).

       “Principles of statutory construction mandate that we ‘give effect to the legislative

intent.’” Newton v. Commonwealth, 21 Va. App. 86, 89, 462 S.E.2d 117, 119 (1995) (quoting

Scott v. Commonwealth, 14 Va. App. 294, 296, 416 S.E.2d 47, 48 (1992)). “[T]he general rule

of statutory construction is to infer the legislature’s intent from the plain meaning of the

language used.” Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998).

“And, when multiple ‘statutes concern[] the same subject,’ we construe them together ‘to avoid

conflict between them and to permit each of them to have full operation according to their

legislative purpose.’” Kirby v. Commonwealth, 63 Va. App. 665, 670, 762 S.E.2d 414, 416

(2014) (quoting Eastlack v. Commonwealth, 282 Va. 120, 125-26, 710 S.E.2d 723, 726 (2011)).

       “If the statute imposes a disability for the purposes of punishment - that is, to reprimand

the wrongdoer, to deter others, etc., it has been considered penal.” Kitze v. Commonwealth, 23

Va. App. 213, 216, 475 S.E.2d. 830, 832 (1996) (quoting Trop v. Dulles, 356 U.S. 86, 96

(1958)). Code §§ 19.2-249 and 19.2-250 specify the jurisdiction involving criminal cases and

are not penal in nature, thus, the cardinal principle of law that penal statutes are strictly construed

against the Commonwealth is not applicable in this case. See Kirby, 63 Va. App. at 672 n.6, 762

S.E.2d at 417 n.6 (finding that Code § 19.2-250 was not a penal statute but simply prescribed the

jurisdiction involving criminal cases).



                                                 -3-
       Appellant argues Code § 19.2-249 controls, thus, the offense must be committed no more

than 300 yards from the boundary line of the City of Williamsburg for venue to lie in the City of

Williamsburg. The Commonwealth argues Code § 19.2-250 controls, thus, if the offense was

committed within one mile of the City of Williamsburg, venue was proper in the City of

Williamsburg.

       Code § 19.2-249 addresses venue when an offense is committed on the boundary of two

counties, two cities, a city and a county, or within 300 yards of that boundary. By its express

terms, Code § 19.2-249 focuses on the close proximity to the two political subdivisions, i.e., on

the boundary or within 300 yards of that boundary. The statute then provides concurrent

jurisdiction in the county or city for the arrest, prosecution, and punishment. Thus, the statute

extends the boundary of each political subdivision 300 yards on either side of the boundary.

       We should note that the offense did not occur within 300 yards of the City of

Williamsburg nor York County boundaries. Under these facts, Code § 19.2-249 does not apply

to establish venue.

       Since Code § 19.2-249 is inapplicable to the facts of this case, we must address Code

§ 19.2-250(A). That section extends municipal boundaries beyond the city/town limits for one

mile. It does not extend the boundary adjoining political subdivisions into the city/town. The

purpose of Code § 19.2-250 is “to prevent the territory contiguous to a city from becoming a

refuge for criminals, and to confer on the corporation courts of the cities the power to enforce the

police regulations and law of the area involved.” Murray v. Roanoke, 192 Va. 321, 326-27, 64

S.E.2d 804, 808 (1951).




                                                -4-
       We hold that Code § 19.2-250(A) clearly allows venue in the City of Williamsburg. It is

undisputed the offense occurred within one mile of the City of Williamsburg boundary.2

       Appellant contends Code § 19.2-249 confers venue and Code § 19.2-250 does not

address venue, thus limiting the extra-territorial distance to 300 yards. However, case law belies

appellant’s contention.

       In Squire v. Commonwealth, 214 Va. 260, 199 S.E.2d 534 (1973), Squire was tried in the

City of Charlottesville for an offense occurring in Albemarle County and within one mile of the

corporate limits of the City of Charlottesville. Id. at 260, 199 S.E.2d at 535. Citing Code

§ 19.2-250(A) (then Code § 15.1-141) the Supreme Court concluded that the City of

Charlottesville was the proper venue. Squire, 214 Va. at 263, 199 S.E.2d at 537.

       Clearly, the jurisdiction mentioned in both statutes is territorial jurisdiction.

       Essentially, Code § 19.2-250(A) makes one mile the operative distance, not the 300 yards

stated in Code § 19.2-249. We cannot ignore the unambiguous plain and obvious meaning of the

words chosen by the legislature. See Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87

(1985) (finding that “[l]anguage is ambiguous if it admits of being understood in more than one

way or refers to two or more things simultaneously”). Clearly the legislature intended for Code

§ 19.2-250(A) to control venue under the facts of this case.

       On appeal, appellant further argues there was no evidence that the City of Williamsburg

was a corporation or that the City of Williamsburg Police Department, the arresting officer, or

the Circuit Court of the City of Williamsburg were corporate authorities, thus, making Code



       2
          We note that if the prerequisites of both Code §§ 19.2-249 and 19.2-250 are met, venue
could lie under either code provision. See Boatwright v. Commonwealth, 50 Va. App. 169, 172
n.5, 647 S.E.2d 515, 517 n.5 (2007). For example, if a defendant was charged with an offense
against the Commonwealth and it occurred within 300 yards of the boundary between two
political subdivisions, venue would lie in either political subdivision.
                                                 -5-
§ 19.2-250 inoperative. Appellant failed to make those arguments below, and Rule 5A:18 bars

consideration of them on appeal.

       In his motion to strike and closing argument, appellant argued Code § 19.2-249 applied,

thus, requiring venue to be in York County. At no time did appellant argue the elements of Code

§ 19.2-250(A) had not been proven nor that the Commonwealth did not prove the City of

Williamsburg had no corporate authority to arrest outside the City of Williamsburg’s corporate

limits. Appellant also does not argue that the good cause or ends of justice exceptions to

Rule 5A:18 apply, and we will not consider, sua sponte, a “miscarriage of justice” argument

under Rule 5A:18. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448

(2003) (en banc).

       Appellant further maintains that the refusal charge should also have been tried in York

County, but concedes a refusal charge must be prosecuted where the driving under the influence

charge is tried. See Code § 18.2-268.4 (venue for the trial for a refusal charge lies in the court in

which the driving under the influence charge is tried). Since we conclude the City of

Williamsburg was a proper venue for the driving under the influence charge, it was also a proper

venue for the refusal charge.

       Based upon the foregoing, we affirm appellant’s convictions.

                                                                                           Affirmed.




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