STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Timothy N. Barber, FILED 

Petitioner Below, Petitioner April 4, 2014 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs.) No. 13-0860 (Kanawha County 13-M-AP-6) OF WEST VIRGINIA 

City of Charleston,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Timothy N. Barber, an attorney proceeding in his own interest, appeals an order 

of the Circuit Court of Kanawha County, entered July 23, 2013, that found him guilty of parking in 

a no parking zone in violation of the Charleston, West Virginia, Municipal Code. Respondent City 

of Charleston (“the City”), by counsel Paul D. Ellis and Mandi Kay Carter, filed a summary 

response. 

The Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 

of the Rules of Appellate Procedure. 

According to the testimony and evidence at petitioner’s May 31, 2013, de novo trial,1 

on 

February 8, 2013, petitioner stopped his vehicle in a no parking zone on Laidley Street in 

Charleston. Petitioner left the vehicle’s motor running, activated the blinkers, and exited it briefly 

to deliver a prescription to another attorney. Meter Patrol Officer Pam West ticketed petitioner for 

parking in a no parking zone that was marked by a yellow curb.2 Officer West followed proper 

1 Petitioner was originally found guilty of parking in a no parking zone by the Municipal 

Court of Charleston. Petitioner appealed to the circuit court which afforded him a de novo trial 

pursuant to West Virginia Code § 8-34-1(e). At trial, the City argued that petitioner’s appeal from 

the municipal court was procedurally deficient for a number of reasons. However, finding that it 

could dispose of petitioner’s case on the merits, the circuit court declined to rule on the procedural 

issues. Similarly, because we affirm the circuit court’s decision on the merits, it is unnecessary for 

us to address the alleged procedural defects in petitioner’s appeal to the circuit court. See infra. 

2 Section 114-564 of the Charleston Municipal Code provides as follows: 

(a) When official traffic control signs or markings are in place 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

procedure by also photographing the car’s location at the time of the ticket. Officer West 

subsequently returned to the location to take a second picture that clearly showed the sign that was 

also at the no parking zone, stating, “NO PARKING HERE TO CORNER TOW AWAY.” 

Petitioner argued at trial that because he left his vehicle standing (or idling), it was not 

“parked” and further that he was “unloading” a prescription for another lawyer, which was 

permissible in the zone. The City countered that a person needed a permit to legally load or unload 

in the zone. In addition, petitioner asserted that no evidence existed that he intentionally violated 

the City’s traffic ordinance. At the end of trial, the circuit court found that petitioner’s vehicle was 

“parked” and directed the City’s counsel to prepare an appropriate order. In its July 23, 2013, 

order, the circuit court noted petitioner’s argument that he was not guilty of a parking violation 

when he was delivering a prescription to an attorney’s office, but found that petitioner was not 

legally loading or unloading because he did not have a permit. The circuit court further determined 

that petitioner’s vehicle was not in motion while it was standing in the no parking zone. 

Accordingly, the circuit court found petitioner guilty of parking in a no parking zone in violation 

of the City’s municipal code and fined him $25. 

Petitioner now appeals the circuit court’s July 23, 2013, order finding him guilty of the 

parking violation. We apply the standard for reviewing a judgment entered following a bench trial: 

In reviewing challenges to the findings and conclusions of the circuit court made 

after a bench trial, a two-pronged deferential standard of review is applied. The 

final order and the ultimate disposition are reviewed under an abuse of discretion 

standard, and the circuit court’s underlying factual findings are reviewed under a 

clearly erroneous standard. Questions of law are subject to a de novo review. 

Syl. Pt. 1, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006) (quoting Syl. Pt. 1, Public 

Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996)). 

On appeal, petitioner avers that there was no proof that he intended to violate the City’s 

traffic ordinance and argues that such proof was required. See Syl., State v. Great Atlantic & 

Pacific Tea Co. of America, 111 W.Va. 148, 161 S.E. 5 (1931) (“The legislative purpose to 

dispense with the element of intent in a statutory crime must be clearly expressed.”). This Court 

giving notice, no person shall park a vehicle at any time upon any of 

the streets or parts of streets designated by such signs or markings as 

prohibited parking areas. 

(b) In addition to or in lieu of posting official traffic-control 

signs to establish a no parking zone or area, a no parking zone or 

area may be established by painting the curb yellow; and the length 

of such curb as so painted yellow shall be the length of such no 

parking zone or area; and the yellow paint shall constitute an official 

traffic control marker indicating a no parking zone or area. 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

finds this argument is misplaced for two reasons: (1) petitioner never disputed that he was on 

notice that there was no parking in the zone where he stopped his vehicle and left it standing; and 

(2) petitioner never alleged that he did not intend to do what he did, which was to stop his car and 

leave it standing in the zone. Rather, petitioner’s argument is that stopping a vehicle and leaving it 

standing in a no parking zone should not be construed as “parking” the vehicle under the City’s 

municipal code. 

Pursuant to Section 114-2 of the Charleston Municipal Code, the term “park,” when 

prohibited, includes “the standing of a vehicle.” See also W.Va. Code § 17C-1-54 (same). Section 

114-2 provides that a person still may park “temporarily for the purpose of and while actually 

engaged in loading or unloading.” See id. (same). The City argues that for a person to be “loading 

or unloading,” he or she must be engaged in that business, such as a delivery person. This Court 

notes that the circuit court rejected petitioner’s contention that he was “loading or unloading” 

merely because he was bringing a prescription to a colleague. “An appellate court may not . . . 

weigh evidence as that is the exclusive function and task of the trier of fact.” State v. Guthrie, 194 

W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995). Therefore, after careful consideration, this 

Court concludes that the circuit court did not abuse its discretion in finding petitioner guilty of 

parking in a no parking zone in violation of the City’s municipal code and fining him $25. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: April 4, 2014 

CONCURRED IN BY: 

Chief Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

3