COURT OF APPEALS OF VIRGINIA
Present: Judges Annunz iata, Frank and McClanahan

KEVIN K. STROUT v. Record No. 0885-03-1
CITY OF VIRGINIA BEACH OPINION BY JUDGE ROSEMARIE ANNUNZIATA DEREK LEE NISBET MAY 25, 2004 v. Record No. 0886-03-1
CITY OF VIRGINIA BEACH

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH A. Joseph Canada, Jr., Judge (Jeanne S. Lauer; Inman & Stri ckler, on brief), for appellants. Appellants submitting on brief. (Harvey L. Bryant, III, Co mmonwealth’s Attorney; Lee E. Devendorf, Assistant Commonwea lth’s Attorney, on brief), for appellee. Appellee submitting on brief.

Derek Nisbet and Kevin Strout appeal their convictions fo r destruction of property in violation of the City of Virg inia Beach Code § 23-38. They claim that the ordinance under which they were convicted is invalid because it conflicts with Code § 18.2-137. 1 For the following reasons, we reve rse their convictions.

1 The City contends that defendant Strout di d not challenge the valid ity of the ordinance at trial and that he is therefore procedurally barred from raising it on appeal. Rule 5A:18. The Statement of Facts, however, indicates that the same argument was “necessarily made on behalf of both defendants who were tried together and charged identically under the same defective ordinance.” (Emphasis added). The Statement of Facts was signed by defense counsel and the City attorney, and it was certified by the trial j udge. We find the Statement of Facts to be sufficient evidence that the objection was preserved.- 2 - I. Background On appeal, we view the evidence, and all r easonable inferences that may be drawn, in a light most favorable to the City as the pa rty prevailing below. Garcia v. Commonwealth , 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, th e record establishes that Nisbet and Strout entered the yard of a residence on or about the ev ening of November 4, 2002. The occupants of the residence had just completed celebrating an individua l’s 100th birthday and were asleep when Nisbet and Strout entered the yard. Stre amers, balloons, and other party decorations still adorned the yard and porch. Nisbet and Strout destroyed some of the deco rations, climbing on the r oof of the porch to reach the decorations attached there. Noises coming from the roof of the porch awakened the occupants, who saw one of the defendants running away. Nisbet and Strout were subsequently charged with destruction of property in violatio n of the City of Virginia Beach Code § 23-38. They were convicted after a bench trial, and this appeal followed. II. Analysis On appeal, defendants argue that the city ordinance under which they were convicted is invalid because it conflicts with Code § 18.2-137. They assert that the ordinance cannot be harmonized with the state code because the ordina nce authorizes a penalty greater than the state provision. We agree and reverse the convictions. “The mere fact that the State, in the ex ercise of its police power, has made certain regulations with respect to a s ubject does not prohibit a local le gislature from dealing with the subject.” King v. County of Arlington , 195 Va. 1084, 1088, 81 S.E.2d 587, 590 (1954). However, a local body that legislates on a subjec t must take care that its ordinances do not conflict with state statutes dealing with th e same subject. Code § 1-13.17 provides that ordinances “must not be inconsistent with the Constitution and laws of the United States or of- 3 - this Commonwealth.” It is well established that “local ordinances must conform to and not be in conflict with the public polic y of the State as embodied in its statutes.” King , 195 Va. at 1090, 81 S.E.2d at 591. If the statute and ordinance can be harmonized, however, the courts have a duty “to harmonize them and not nullify the ordinance.” Id. at 1091, 81 S.E.2d at 591. Code § 15.2-1429 reflects in codified form the assertion made by defendants. It provides that “no fine or term of confinement for the vi olation of ordinances sh all exceed the penalties provided by general law for the vi olation of a Class 1 misdemeanor , and such penalties shall not exceed those penalties prescribed by genera l law for like offenses.” Code § 15.2-1429. We cannot harmonize the local and state provisions because the Virginia Beach ordinance establishes a penalty which exceeds the penalty “prescribed by general law for” the “like” offense. The City of Virginia Beach Code § 23-38 states: “If any person, unlawfully but not feloniously, takes, carries aw ay, destroys, defaces or injures any property, real or personal, not his own, he shall be guilty of a Class 1 misdemeanor.” The penalty for a Class 1 misdemeanor is defined by Code § 18.2-11(a), whic h provides that authorized punishment is “confinement in jail for not more than twelve mo nths and a fine of not more than $2,500, either or both.” The parallel provision of the state code dealing with dest ruction of property, Code § 18.2- 137, provides the following: A. If any person unlawfully destroys, defaces, damages or removes without the intent to steal any pr operty, real or personal, not his own, . . . he shall be guilty of a Class 3 misdemeanor . . . . B. If any person intentionally causes such injury, he shall be guilty of (i) a Class 1 misdemeanor if the value of or damage to the property . . . is less than $1,000 or (ii) a Class 6 felony if the value of or damage to the property . . . is $1,000 or more. The punishment authorized for unlawful destruction of property, a Class 3 misdemeanor, is a fine of not more than $500. Code § 18.2-11(c).- 4 - Here, the defendants were convicted of unlaw ful destruction of pr operty. The City of Virginia Beach ordinance classifies unlawful de struction of property as a Class 1 misdemeanor, punishable by a fine not exceeding $ 2,500 and up to twelve months in jail. 2 Under the general law of the Commonwealth, the offense is classi fied as a Class 3 misdemeanor, punishable only by a fine not exceeding $500. The City of Virginia Beach ordinance crimin alizing destruction of property manifests a conflict with state law in violation of Code § 15.2- 1429 because the penalty that attaches under the ordina nce exceeds the penalty for th e “like” offense found in Code § 18.2-137. 3 See also Granny’s Cottage, Inc. v. Town of Occoquan , 3 Va. App. 577, 582, 352 S.E.2d 10, 14 (1987) (“The penalty provision . . . is inconsistent with existing state law, and as mandated by Code § 1-13.17, cannot stand.”). We therefore reverse Nisb et’s and Strout’s convictions. See Parker v. City of Newport News , 17 Va. App. 253, 255, 436 S.E.2d 290, 292 (1993). Reversed and dismissed.

2 City of Virginia Beach Code § 23-38 was la st amended in 1979. At that time, both the ordinance and the general law of the Commonwea lth criminalized “unlawful” destruction of property and classified the crim e as a Class 1 misdemeanor. In 1999, however, the state code was amended. The state code now classifies “u nlawful” destruction of property as a Class 3 misdemeanor. The City of Virgin ia Beach has not amended its ordinance to reflect the change in the state code.

3 The City did not argue that the ordinance could be saved by severing the invalid penalty provision. We therefore do not address whether it would have been possible to harmonize the ordinance with the general law, avoid nullifying the ordinance as a whole, and apply a more narrow remedy addressing only the penalty provision. See King , 195 Va. at 1092-93, 81 S.E.2d at 592-93; cf. Elliott v. Commonwealth , 267 Va. 464, 472, 593 S.E.2d 263, 268 (2004) (holding, under Code § 1-17.1, that it is th e court’s duty to consider, sua sponte , severability as it may relate to state statutes in the context of a constitutional challenge).