Upholding a city ordinance prohibiting early morning trespassing under the Dillon Rule, the Court of Appeals affirms defendant’s conviction as supported by the evidence; defendant’s constitutional challenges are barred for lack of standing and failure assert an as-applied challenge below.
Early about 1:00 a.m. one December morning, a police officer responded to a call of people on the property of an auto body shop. The back lot was surrounded by an eight-to-ten foot chain link fence with barbed wire along the top. Two sliding gates separating front and back lots were open for snow plows. The premises were under 24-hour camera surveillance with monitoring from 10:00 p.m. to 5:00 a.m. nightly. The responding officer identified defendant as present on the lot wearing a long black coat matching the description given in the report. The shop manager testified defendant did not have permission to be on the property. Defendant was charged with vehicle tampering in violation of Va. Code § 18.2-146 and trespassing in violation of a city ordinance prohibiting presence on another’s property without permission between 11:00 p.m. and 7:00 a.m. Defendant presented no evidence at trial; the trial court denied his motions to strike the trespass charge. The jury acquitted him of the tampering charge but convicted him of violating the ordinance.
Defendant appeals, relying on an agreed statement of facts under Rules 5A:7(a)(7) and 5A8(d). Defendant argues the ordinance is unauthorized and unconstitutional both on its face and as applied. He also challenges the sufficiency of evidence. We affirm. Defendant’s facial challenge fails for lack of standing under Stanley v. Norfolk, 218 Va. 504 (1977)—defendant’s conduct was not constitutionally protected and clearly proscribed by the ordinance. Defendant’s attempt to argue an as-applied challenge on brief is barred by Rule 5A:12. The ordinance here is a crime prevention measure expressly authorized by § 15.2-1102 and is within the city’s implied power to supplement state trespassing statutes without contradicting them. State and local governments may have concurrent jurisdiction. The agreed record does not support defendant’s challenge to the sufficiency of evidence on the time he was present. Applying our familiar deferential standard of review to this issue, we affirm. The parties agreed nothing in the record indicates a time other than 1:00 a.m. for the police officer to arrive and take defendant into custody. The police officer identified defendant as present on the scene in the early morning hours wearing clothing that matched the report. The jury was entitled to draw reasonable inferences and defendant has not shown the jury disregarded any reasonable hypothesis of innocence. Rule 5A:18 bars consideration of defendant’s new arguments about the day in question being the shortest in the year with a major snowstorm.
Pearson v. City of Falls Church (Beales) No. 2422-10-4, Jan. 17, 2012; Falls Church Cir. Ct. (Almand) Allison H. Carpenter for appellant; John E. Foster for appellee. VLW 012-7-012(UP), 13 pp.