COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

STUART ACREE BARBOUR, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0123-96-3 JUDGE LARRY G. ELDER 

 APRIL 15, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

 Stuart A. Barbour, Jr., pro se. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Stuart Acree Barbour, Jr. (appellant) appeals his conviction 

of improper driving in violation of Code § 46.2-857. He contends 

that the City of Roanoke Circuit Court (trial court) lacked 

subject matter jurisdiction over his case and, in the 

alternative, that the evidence was insufficient to support his 

conviction. For the reasons that follow, we affirm. 

 I. 

SUBJECT MATTER JURISDICTION 

 Appellant contends for the first time on appeal that the 

trial court lacked subject matter jurisdiction over his case. We 

disagree. 

 It is well settled that "a judgment is void ab initio only 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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if it 'has been procured by extrinsic or collateral fraud, or 

entered by a court that did not have jurisdiction over the 

subject matter or the parties.'" Parrish v. Jessee, 250 Va. 514, 

521, 464 S.E.2d 141, 145 (1995) (quoting Rook v. Rook, 233 Va. 

92, 95, 353 S.E.2d 756, 758 (1987)). "Otherwise a judgment is 

merely voidable and may be set aside only (1) by motion to the 

trial court filed within twenty-one days of its entry, . . . 

(2) or on direct appeal, . . ., or (3) by bill of review . . . ." 

Id. (citations omitted). Although arguments not presented to 

the trial court are generally not entertained on appeal, 

"objections to subject-matter jurisdiction may be raised at any 

time and are not waivable." Owusu v. Commonwealth, 11 Va. App. 

671, 672, 401 S.E.2d 431, 431 (1991); see also Jacques v. 

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). 

 We hold that the trial court had subject matter jurisdiction 

over the criminal charge against appellant. Appellant's case was 

originally heard by the City of Roanoke General District Court. 

Appellant subsequently appealed his conviction in the district 

court to the trial court. Circuit courts have subject matter 

jurisdiction: 

 of all cases, civil and criminal, in which an 

appeal . . . may, as provided by law, be 

taken to . . . such courts . . . from or to 

the judgment or proceedings of any inferior 

tribunal. 

Code § 17-123. Circuit courts have appellate jurisdiction over 

criminal and traffic cases initially heard in a general district 
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court. General district courts have original jurisdiction for 

the trial of "[a]ll other misdemeanors and traffic infractions 

arising in such . . . city [for which the district court is 

established]." Code § 16.2-123.1. In addition, Code § 16.1-132 

provides a right of appeal to the circuit court for "[a]ny person 

convicted in a district court of an offense not felonious 

. . . ." Because appellant was charged with reckless driving and 

appealed his initial conviction in the City of Roanoke General 

District Court, the City of Roanoke Circuit Court had subject 

matter jurisdiction to try his case de novo. See Code § 16.1-136 

(stating that an appeal taken from a district court shall be 

heard de novo in the appellate court). 

 Appellant argues that he was charged with "improper driving" 

and that this charge is not cognizable under the Commonwealth's 

laws regulating the operation of motor vehicles. However, the 

summons issued by Officer Bingeman, the charging document in this 

case, does not charge appellant with "improper driving." 

Instead, it charges appellant with "driving 2 vehicles abreast in 

one lane" in violation of Code § 46.2-857. 

 We also disagree with appellant's argument that the 

Commonwealth failed to establish that his alleged traffic 

infraction occurred in the City of Roanoke. At trial, the 

Commonwealth's attorney had the following exchange with Officer 

Bingeman: 

 Q. And [appellant] went to the right, is 

that correct? 
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 A. Correct. He passed on the right. 

 Q. The light was green, is that right? 

 A. Yes, sir. 

 Q. Okay. All right. Was this driving in 

the City of Roanoke? 

 A. Yes, it was. 

This evidence supports the trial court's conclusion that it had 

jurisdiction over appellant's case. 

 II. 

SUFFICIENCY OF THE EVIDENCE 

 Appellant contends that the evidence was insufficient to 

prove that he violated Code § 46.2-857. We disagree. 

 When considering the sufficiency of evidence on appeal in a 

criminal case, this Court views the evidence in a light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. See Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On 

review, this Court does not substitute its own judgment for that 

of the trier of fact. See Cable v. Commonwealth, 243 Va. 236, 

239, 415 S.E.2d 218, 220 (1992). The trial court's judgment will 

not be set aside unless it appears that the judgment is plainly 

wrong or without supporting evidence. See Martin v. 

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 We hold that the evidence was sufficient to support 

appellant's conviction of violating Code § 46.2-857. In a 
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prosecution under Code § 46.2-857, the Commonwealth must prove 

that the defendant drove his or her motor vehicle so as "to be" 

or "to travel" abreast of another vehicle "in a lane designed for 

one vehicle." Code § 46.2-857. Officer Bingeman testified that 

Brambleton Avenue has a double yellow line painted in its middle 

and is wide enough to accommodate one lane of traffic traveling 

in either direction while enabling cars to parallel park on the 

east-bound side of the street. This evidence supports the trial 

court's conclusion that the east-bound lane of Brambleton Avenue 

on which appellant was driving is "designed for one vehicle." In 

addition, Officer Bingeman testified that while a mail truck was 

stopped at an intersection and as an Oldsmobile was still 

approaching the intersection, appellant pulled to his right and 

passed both vehicles in the space normally used for parking on 

Brambleton Avenue. This evidence supports the trial court's 

conclusion that appellant drove his car so as to travel abreast 

of another vehicle. 

 For the foregoing reasons, we affirm the conviction of 

improper driving in violation of Code § 46.2-857. 

Affirmed.