COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

NELSON DOLLAR SMITH 

 OPINION BY 

v. Record No. 0181-97-1 JUDGE NELSON T. OVERTON 

 FEBRUARY 24, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

John K. Moore, Judge 

 William Brandon Baade for appellant. 

 Pamela A. Rumpz, Assistant Attorney General 

(Richard Cullen, Attorney General; 

Kimberley A. Whittle, Assistant Attorney 

General, on brief), for appellee. 

 Nelson Dollar Smith ("defendant") was convicted in the 

Circuit Court of the City of Virginia Beach of two counts of 

distribution of cocaine, in violation of Code § 18.2-248, one 

count of distribution of cocaine within 1,000 feet of a school, 

in violation of Code § 18.2-255.2, and one count of conspiracy to 

distribute cocaine, in violation of Code § 18.2-256. Defendant 

contends the trial court erred when it: (1) ruled that a general 

order regarding the filing of a "PD-256" confiscation form was 

irrelevant, (2) ruled that the parking lot of a 7-Eleven 

convenience store was a "property open to public use" under Code 

§ 18.2-255.2 and (3) imposed a sentence in excess of that 

recommended by the sentencing guidelines. Because we find no 

error, we affirm. 

 We examine the evidence in the light most favorable to the 
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Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987). So viewed, the evidence 

indicates that on October 25, 1994, defendant sold cocaine with a 

street value of fifty dollars to an undercover detective of the 

City of Virginia Beach Police Department. The sale was 

consummated in the parking lot of a 7-Eleven convenience store. 

This parking lot was located across the street from Bayside High 

School, well within the 1,000-foot limit proscribed by Code 

§ 18.2-255.2. Following the arrest of a fellow narcotics dealer 

in the same parking lot, defendant was also arrested. 

 At trial, defense counsel sought to cross-examine Detective 

J.V. Lindsay, the case officer in charge of the investigation, as 

to how he should file a "PD-256" confiscation form. This form is 

used by the City of Virginia Beach police to keep track of the 

weight of drugs seized from suspects after arrest. Specifically, 

defense counsel questioned Detective Lindsay regarding a general 

order requiring this form to be completed by the end of the shift 

within which a suspect is arrested. The Commonwealth objected, 

and the objection was sustained. The trial court ruled that 

evidence of Detective Lindsay's actions with regard to the drugs 

and the form used to track them were relevant, but whether he met 

the time limit imposed by a general order not in evidence was 

irrelevant. Defense counsel complied with the trial court's 

ruling without proffer of the language of the general order. 
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Defendant was later convicted by a jury and sentenced to 

seventy-five years incarceration and an eight hundred thousand 

dollar fine. 

 Defendant's first ascription of error is the trial court's 

ruling that his questions regarding completion of the drug 

confiscation form were irrelevant. He argues that Detective 

Lindsay's alleged non-compliance with a general order indicates 

that he may have purposefully misstated the weight of the drugs 

or fabricated their existence. While "the right of an accused to 

cross-examine prosecution witnesses to show bias or motivation, 

when not abused, is absolute," Brandon v. Commonwealth, 22 Va. 

App. 82, 88, 467 S.E.2d 859, 861 (1996), the record before us 

provides insufficient grounds upon which to decide this issue. 

 [A] unilateral avowal of counsel, if 

unchallenged, or a mutual stipulation of the 

testimony expected constitutes a proper 

proffer, and that absent such acquiescence or 

stipulation, this Court will not consider an 

error assigned to the rejection of testimony 

unless such testimony has been given in the 

absence of the jury and made a part of the 

record in the manner prescribed by the Rules 

of Court. 

Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d 79, 81 

(1977). In the instant case, defense counsel never proffered the 

general order which he claims was violated. In fact, Detective 

Lindsay disputed that the order contained the time limit which 

defendant claims it imposes. With nothing in the record 

clarifying the substantive details of the order, and, therefore, 

no indication of how far Detective Lindsay may have strayed from 
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the order, we cannot say the trial court abused its discretion 

when it stopped defense counsel from exploring the area. See

Mostyn v. Commonwealth, 14 Va. App. 920, 924, 420 S.E.2d 519, 521 

(1992). 

 Defendant next contends the trial court erred in finding 

that he sold cocaine within an area proscribed by Code 

§ 18.2-255.2(A). The statute reads in pertinent part: 

 [i]t shall be unlawful for any person to 

manufacture, sell or distribute or possess 

with intent to sell, give or distribute any 

controlled substance, imitation controlled 

substance or marijuana at any time . . . (ii) 

upon public property or any property open to 

public use within 1,000 feet of such school 

property. 

 "[W]ords and phrases used in a statute should be given their 

ordinary and usually accepted meaning unless a different 

intention is fairly manifest." Woolfolk v. Commonwealth, 18 Va. 

App. 840, 847, 447 S.E.2d 530, 534 (1994) (citing Huffman v. 

Kite, 198 Va. 196, 199, 93 S.E.2d 328, 331 (1956)). When the 

words are clear and unambiguous we are also bound by the 

following principle: 

 "While in the construction of statutes 

the constant endeavor of the courts is to 

ascertain and give effect to the intention of 

the legislature, that intention must be 

gathered from the words used, unless a 

literal construction would involve a manifest 

absurdity. Where the legislature has used 

words of a plain and definite import the 

courts cannot put upon them a construction 

which amounts to holding the legislature did 

not mean what it has actually expressed." 

 

Weinberg v. Given, 252 Va. 221, 225-26, 476 S.E.2d 502, 504 
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(1996) (quoting Barr v. Town & Country Properties Inc., 240 Va. 

292, 295, 396 S.E.2d 672, 674 (1990)). 

 With these directives in mind, we look to the language of 

the statute. The meaning of the phrase "property open to public 

use" has never been interpreted by an appellate court, most 

likely due to the relatively clear import of its language. 

Defendant urges us to adopt the view that only property owned or 

associated with state or local government is contemplated by the 

law. His assertion, however, ignores the remainder of the 

statutory language. Code § 18.2-255.2(A)(ii) states that "public 

property or any property open to public use" is covered by the 

statute. (Emphasis added). If the General Assembly had intended 

to restrict application of the law to public property only, it 

would not have included the words "or any property open to public 

use." Defendant's interpretation requires us to hold that the 

phrase "property open to public use" is redundant and 

meaningless. This we will not do. See Jones v. Conwell, 227 Va. 

176, 180, 314 S.E.2d 61, 64 (1984) ("The rules of statutory 

interpretation argue against reading any legislative enactment in 

a manner that will make a portion of it useless, repetitious, or 

absurd."). 

 Because the meaning of "property open to public use" is not 

simply limited to public property, we look to the intent of the 

legislature to define those areas where the statute does apply. 

It is no great difficulty to divine the intention of the General 
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Assembly when it passed Code § 18.2-255.2. It has identified the 

evil to society that drug use and distribution represent. This 

drug culture is particularly destructive to the young and 

impressionable members of our society. In an attempt to contain 

this modern plague, both the General Assembly and Congress have 

increased the penalties accruing to one who sells narcotics 

"'[i]n such areas, where children congregate in large numbers 

before, during, and after school sessions.'" Commonwealth v. 

Burns, 240 Va. 171, 178, 395 S.E.2d 456, 459 (1990) (quoting 

United States v. Nieves, 608 F. Supp. 1147, 1149-50 (S.D.N.Y. 

1985)); See also 21 U.S.C. § 845a. 

 The convenience store outside of which defendant sold his 

cocaine is the type of place where school age children 

congregate. It is located directly across the street from a high 

school in the City of Virginia Beach. There is no indication in 

the record that that location was blocked, closed or in any way 

inaccessible to the public. Indeed, the record suggests that the 

participants to the drug transaction at issue had full access to 

the property on several occasions with no interruption from the 

owners of the establishment. Under these circumstances we hold 

that this convenience store parking lot was "property open to 

public use." 

 Defendant's third and final argument is one that has been 

consistently advanced and equally as consistently rejected. He 

contends the trial court abused its discretion by imposing the 
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seventy-five-year sentence and eight hundred thousand dollar fine 

that was recommended by the jury. The law on this issue could 

not be more clear. This Court's review is limited to whether the 

sentence fell within the permissible statutory range. Code 

§ 19.2-298.01(F); see also Belcher v. Commonwealth, 17 Va. App. 

44, 46, 435 S.E.2d 160, 161 (1993). Because all of defendant's 

sentences and fines were within the statutory range, defendant's 

argument is without support in law or in fact. 

 Because we find no error in the trial court, we affirm 

defendant's convictions. 

 Affirmed.