COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Frank and Kelsey 

Argued at Chesapeake, Virginia 

KENNETH EDWARD CAMPBELL 

 OPINION BY 

v. Record No. 3027-01-1 JUDGE D. ARTHUR KELSEY 

NOVEMBER 19, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

 Robert C. Astor for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

The appellant, Kenneth Edward Campbell, claims the trial 

court erred on two grounds when it convicted him for driving as 

a habitual offender (second offense) in violation of Code 

§ 46.2-357. First, Campbell argues that the Commonwealth had no 

jurisdiction over this offense because the road he traveled on 

was exclusively within a federal military base. Second, 

Campbell contends the road should not be deemed a public highway 

for purposes of the habitual offender statute. Persuaded by 

neither argument, we affirm. 

I. 

While stationed as a guard at Cheatham Annex, a federal 

military facility in York County, Officer Gayle Sharp observed a 
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car approach her guardhouse at the Annex's entrance on Route 199 

East on March 27, 2001. Sharp, whose job required her to 

restrict access to the facility to those showing proper 

credentials, asked the driver, Kenneth E. Campbell, for 

identification. When Campbell could not produce the requested 

identification, Sharp denied his entry to the facility, 

instructed him to pull his car to the shoulder of Route 199, and 

called security. Following Sharp's instructions, Campbell 

parked his car on the side of the road outside the fence 

surrounding the Annex. 

Shortly afterward, York County Deputy Michael Wright 

arrived at the entrance to the Annex. Wright observed Campbell 

sitting in his car with his engine running, parked between two 

Commonwealth road signs. Wright approached Campbell's car, 

ascertained Campbell's identity, and checked Campbell's license 

on the police computer. Upon learning that Campbell was driving 

with a suspended license while a habitual offender, Wright 

placed Campbell under arrest. 

At trial, the Commonwealth proved that Campbell was a 

habitual offender at the time he was driving outside the 

Cheatham Annex. In response, Campbell moved to dismiss on two 

grounds. First, Campbell claimed that his arrest occurred on 

land under the federal government's exclusive jurisdiction. 

Second, Campbell argued that the habitual offender statute did 

not cover the particular road upon which his arrest occurred. 
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The trial court denied both motions, convicted Campbell of 

driving as a habitual offender (second offense), and sentenced 

him to five years in prison with two years suspended. Campbell 

now appeals his conviction, asserting the same two grounds he 

raised at trial. 

 II. 

 When reviewing a trial court's decision on appeal, we 

examine the evidence in the light most favorable to the 

prevailing party, the Commonwealth in this case, granting it the 

benefit of any reasonable inferences. Archer v. Commonwealth, 

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997). We review the 

trial court's factual findings only to determine if they are 

plainly wrong or devoid of supporting evidence. See Mier v. 

Commonwealth, 12 Va. App. 827, 828, 407 S.E.2d 342, 343 (1991). 

If reasonable jurists could disagree about the probative force 

of the facts, we have no authority to substitute our views for 

those of the trial judge. 

Together, these principles require the appellant to 

shoulder the burden of showing that the trial court's decision 

"constituted reversible error." McGee v. Commonwealth, 25 

Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) 

(citations omitted); see also Davis v. Commonwealth, 37 Va. App. 

421, 429-30, 559 S.E.2d 374, 378 (2002). "Absent clear evidence 

to the contrary in the record, the judgment of a trial court 

comes to us on appeal with a presumption that the law was 
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correctly applied to the facts." Yarborough v. Commonwealth, 

217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); Oliver v. 

Commonwealth, 35 Va. App. 286, 297, 544 S.E.2d 870, 875 (2001) 

("The trial court's judgment is presumed to be correct."). 

A. 

Campbell's first argument, that the Commonwealth has no 

jurisdiction over his case, asserts that his arrest occurred 

within the geographical boundaries of the Cheatham Annex —— a 

military base Campbell claims to be governed exclusively by 

federal law. Finding that "the gated entrance to Cheatham Annex 

is the part of the property that they are concerned about," the 

trial court denied the motion. The court likewise held that, 

"notwithstanding that, we probably have concurrent 

jurisdiction." For the following reasons, we affirm the trial 

court on its alternative holding. 

Under settled principles, "the mere ownership of land by 

the United States does not divest a state of its jurisdiction 

over that land, and . . . the nature and extent of the federal 

jurisdiction is dependent upon the consent of the state." Smith 

v. Commonwealth, 219 Va. 455, 461, 248 S.E.2d 135, 139 (1978) 

(citing James v. Dravo Contracting Co., 302 U.S. 134 (1937)); 

Waltrip v. Commonwealth, 189 Va. 365, 53 S.E.2d 14 (1949). 

By statute, Virginia consents to cede only "concurrent 

jurisdiction" to the United States to prosecute crimes committed 
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on lands transferred to the federal government. Smith, 219 Va. 

at 461, 248 S.E.2d at 139; see Code § 7.1-18.1(C) ("Over all 

lands hereafter acquired by the United States, the Commonwealth 

hereby cedes to the United States concurrent governmental, 

judicial, executive and legislative power and jurisdiction."). 

"When the United States acquires land by a state ceding its 

jurisdiction, the state may impose 'conditions which are not 

inconsistent with the carrying out of the purpose of the 

acquisition,'" including the condition that the state retain 

concurrent jurisdiction to enforce its traffic laws. Gay v. 

Commonwealth, 10 Va. App. 229, 230, 391 S.E.2d 737, 737 (1990) 

(quoting United States v. Unzeuta, 281 U.S. 138, 142 (1930)).1 

"Any additional jurisdiction over this land can be relinquished 

only if the Commonwealth executes a deed of cession, and the 

deed must be formally accepted by the United States." Smith, 

219 Va. at 461, 248 S.E.2d at 139. 

Among other things, concurrent jurisdiction includes 

"jurisdiction of the courts of Virginia over persons, 

transactions, matters and property on such lands . . . ." Code 

§ 7.1-18.1(C). Territory subject to concurrent jurisdiction 

thus comes within "the plenary authority of both the Federal 

Government and the State," permitting both to exercise police 

 

1 See generally 1A Julius L. Sackman, Nichols on Eminent 

Domain § 2.131[1] n.13.1 (3d ed. rev. 2000) (surveying numerous 

cession statutes from various states). 
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powers. North Dakota v. United States, 495 U.S. 423, 429 n.2 

(1990). 

Because of the clear public policy announced in the cession 

statute, "it is presumed that the Commonwealth retains 

concurrent jurisdiction over the area embracing the locus of the 

crime." Smith, 219 Va. at 461, 248 S.E.2d at 139. The 

presumption in favor of concurrent jurisdiction can be rebutted, 

but only by a clear manifestation of a specific intent to do so. 

While a state may agree to transfer the last "residuum of 

jurisdiction which otherwise it would be free to exercise," 

Silas Mason Co. v. Tax Comm. of Washington, 302 U.S. 186, 197 

(1937), a total forfeiture of sovereignty cannot be presumed or 

implied. 

 Applied to this case, these principles demonstrate that 

the Commonwealth did not divest itself of concurrent legislative 

jurisdiction over Cheatham Annex. The cession deed provided: 

WHEREAS, the United States of America, 

in order to provide for more convenient and 

efficient law enforcement operation desires 

to adjust the jurisdiction so that it will 

enjoy concurrent legislative jurisdiction

with the Commonwealth. 

WHEREAS, the Director of Real Estate, 

Department of the Navy, the authorized 

officer, by letter dated September 27, 1984, 

requested that the Commonwealth cede such 

legislative jurisdiction so that both 

sovereigns would enjoy concurrent 

legislative jurisdiction. 

* * * * * * * 
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WITNESS that, for and in consideration 

of the premises, the Commonwealth of 

Virginia . . . hereby cede[s] such 

legislative jurisdiction to the United 

States of America so each party hereto will 

enjoy concurrent jurisdiction . . . . 

(Emphasis added.) 

The phrase "legislative jurisdiction" refers to the 

"lawmaking power of a state" and "the power of a state to apply 

its laws" to a particular set of facts. Adventure 

Communications v. Kentucky Registry of Election Fin., 191 F.3d 

429, 435 (4th Cir. 1999) (citations omitted). See generally

Willis L.M. Reese, Legislative Jurisdiction, 78 Colum. L. Rev. 

1587, 1587-94 (1978). Given the accepted meaning of concurrent 

jurisdiction, particularly when coupled with the concept of 

legislative jurisdiction, the provisions in the Cheatham cession 

deed hardly can be interpreted to cede all state power to the 

federal government, leaving it with exclusive federal 

jurisdiction over the enclave. 

Campbell correctly points out that the deed goes on to 

reserve the "power to serve civil and criminal process on such 

lands . . . ." This reservation, he asserts, has the effect of 

eviscerating all concurrent state power except the power to 

serve process. Campbell's cramped interpretation of the cession 

deed, however, finds no favor in our law. Virginia courts 

presume that the Commonwealth retains plenary concurrent 

jurisdiction unless it has been expressly ceded to the federal 
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government. The inclusion in the deed of a lesser-included 

power (the authority to serve process) perhaps can be criticized 

as redundant. But it cannot be construed as an implied 

forfeiture of all incidents of dual sovereignty inherent in the 

concept of concurrent jurisdiction. 

After all, Virginia law requires the Commonwealth —— at a 

minimum —— to preserve state authority in the cession deed to 

serve process on individuals within federal enclaves. See Code 

§ 7.1-18.1(C); Code § 7.1-21(6). The underlying "purpose of 

this reservation is to prevent the land involved from becoming 

an asylum for fugitives from justice." United States v. 

Schuster, 220 F. Supp. 61, 64 (E.D. Va. 1963). As a result, the 

service-of-process provision does not sufficiently rebut the 

presumption of concurrent jurisdiction.2

B. 

Campbell's second argument, that the roadway on which he 

was arrested was not a "highway" for purposes of the habitual 

offender statute, likewise must be rejected. 

 

2

 It would be an entirely different case if the Cheatham 

Annex deed, like one executed by Virginia Governor James Monroe 

in 1801, provided that the state ceded "all the jurisdiction 

which this Commonwealth possesses over the public lands" except 

the power to execute process. Western Union Tel. Co. v. Chiles, 

214 U.S. 274, 277 (1909). The plain import of that cession deed 

(in contrast to the equally plain meaning of the Cheatham Annex 

deed) adequately rebuts the presumption of concurrent 

jurisdiction. Id.
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Virginia law prohibits a habitual offender from driving on 

the "highways of the Commonwealth" while his driver's license 

remains revoked. Code § 46.2-357. Though the statute defines a 

highway as the "entire width between the boundary lines of every 

way or place open to the use of the public for purposes of 

vehicular travel," Code § 46.2-100, the identifying feature of a 

highway remains "the degree to which the way is open to public 

use for vehicular traffic." Furman v. Call, 234 Va. 437, 439, 

362 S.E.2d 709, 710 (1987). 

The public's free and unrestricted use of a roadway 

supports the inference that a road is a highway. Evidence that 

the roadway's users must obtain either explicit or implicit 

permission to use the road may refute this inference. See Kay 

Mgmt. Co. v. Creason, 220 Va. 820, 832, 263 S.E.2d 394, 402 

(1980). Mere inconveniences to free travel on a road (such as 

"checking in and out" vehicles at checkpoints or access gates) 

do not inhibit public use of the roadway to the extent that they 

divest a road of its character as a highway. See Coleman v. 

Commonwealth, 16 Va. App. 747, 749, 433 S.E.2d 33, 35 (1993) 

(where a federal enclave is "open to the public," the presence 

of an access gate for "checking in and out" of the enclave did 

not preclude the road from being a highway under the habitual 

offender statute). 

A combination of impediments on free and unrestricted 

travel —— private ownership of the way, use reserved for 
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business invitees, absence of traffic signs, the owner's ability 

to remove people from the premises —— must exist to categorize a 

road as private. See Roberts v. Commonwealth, 28 Va. App. 401, 

406, 504 S.E.2d 890, 892 (1998); see also Flinchum v. 

Commonwealth, 24 Va. App. 734, 737-38, 485 S.E.2d 630, 631 

(1997) (a parking lot open only to invitees was not a highway). 

 In this case, we need not answer the question whether the 

road inside the Annex's gate was a highway for purposes of the 

habitual offender statute because Campbell never entered that 

road. Although Campbell intended to enter that secured portion 

of the road, Sharp denied his entry when he could not produce 

proper identification. Then, while still outside the secured 

portion of the Annex, Campbell pulled his car away from the 

Annex and parked on the side of Route 199 until the police 

arrived. Campbell remained, at all times, on an unrestricted 

portion of the highway, in an area open to any member of the 

driving public. There, Campbell clearly drove on a highway 

covered by the habitual offender statute. See Coleman, 16 

Va. App. at 749, 433 S.E.2d at 35 (classifying a 

minimally-restricted road within a federal enclave as a 

highway). 

 Even if, as Campbell insists, some small area outside the 

Annex gate did not qualify as a public highway, the entire 

length of Route 199 leading up to that area obviously does. 

Officer Sharp's observations, as well as the exhibits and 
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photographs reviewed by the trial court, confirm that (i) Route 

199 is the only road leading to the Annex gate area, and (ii) 

Campbell drove up Route 199 for a considerable distance before 

entering the area between the warning sign and the Annex gate. 

No evidence proved any other person was in the car. Thus, the 

absence of any viable alternative explanation for Campbell's car 

getting to the gate area (other than by Route 199) sufficiently 

supports the conclusion that Campbell drove on a public highway. 

III. 

The evidence proved the Commonwealth had concurrent 

jurisdiction to enforce its traffic laws against Campbell. The 

trial court did not err in rejecting Campbell's argument that 

the cession deed limited this jurisdiction. Nor did the trial 

court err in finding that Campbell drove his vehicle on a public 

highway in violation of the habitual offender statute. We thus 

affirm Campbell's conviction. 

 Affirmed.