Present: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette, 

JJ., and Carrico, S.J. 

RONNIE EUGENE FULLWOOD 

 OPINION BY 

v. Record No. 091015 SENIOR JUSTICE HARRY L. CARRICO 

 February 25, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 This appeal involves the application of Code § 18.2-255.2, 

which is entitled “Prohibiting the sale or manufacture of drugs 

on or near certain properties.” On June 12, 2006, a grand jury 

in the Circuit Court for the City of Newport News indicted the 

defendant, Ronnie Eugene Fullwood, on one count of possessing 

marijuana and one count of possessing cocaine with intent to 

distribute within 1,000 feet of a school while upon public 

property or property open to public use in violation of Code 

§ 18.2-255.2. 

 At the outset of a bench trial in the circuit court, 

Fullwood moved to dismiss one of the charges against him on the 

ground that possession of more than one substance with intent to 

distribute within 1,000 feet of a school constituted only one 

offense because the possession was based upon a single incident 

or transaction. The circuit court denied the motion. The court 

denied similar motions made at the conclusion of the 

Commonwealth’s evidence and at the conclusion of all the 

evidence, the latter motion adding an argument that both charges 
should be dismissed because the possession did not occur on 

property open to public use. 

 At Fullwood’s sentencing, he again moved the dismissal of 

one of the charges on the ground that the possession of two 

substances at the same time constituted only one offense. The 

circuit court denied the motion and sentenced Fullwood to 

incarceration with the Virginia Department of Corrections for 

five years on his marijuana conviction, all suspended, and for 

five years on his cocaine conviction, with four years suspended. 

Both suspensions were conditioned upon Fullwood’s good behavior 

for fifteen years and his supervision on probation for one year 

from the date of his release from custody.∗

 In a published opinion, the Court of Appeals of Virginia 

affirmed the judgment of the circuit court. Fullwood v. 

Commonwealth, 54 Va. App. 153, 676 S.E.2d 348 (2009). We 

awarded Fullwood this appeal. 

Code § l8.2-255.2 provides in pertinent part as follows: 

 A. It 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 while: 

 (i) upon the property, including buildings and 

grounds, of any public or private elementary, 

secondary, or post secondary school, or any public 

 ∗

 Fullwood was also convicted of two other drug charges plus 

a charge of possessing a firearm while simultaneously possessing 

controlled substances. However, these charges are not involved 

in this appeal. 

2
or private two-year or four-year institution of 

higher education, or any clearly marked licensed 

child day center as defined in § 63.2-100; 

 (ii) upon public property or any property open 

to public use within 1,000 feet of the property 

described in clause (i); 

. . . . 

 B. Violation of this section shall constitute a 

separate and distinct felony. Any person violating 

the provisions of this section shall, upon conviction, 

be imprisoned for a term of not less than one year nor 

more than five years and fined not more than $100,000. 

A second or subsequent conviction hereunder for an 

offense involving a controlled substance classified in 

Schedule I, II, or III of the Drug Control Act 

(§ 54.1-3400 et seq.) or more than one-half ounce of 

marijuana shall be punished by a mandatory minimum 

term of imprisonment of one year to be served 

consecutively with any other sentence. 

BACKGROUND 

 On the early afternoon of January 20, 2006, Officers Ara M. 

Hahn and J. S. Turlington of the City of Newport News Police 

Department conducted surveillance at the Newsome Park apartment 

complex located on a dead-end street in the city. Off of the 

end of that street is a cul-de-sac and off of the cul-de-sac is 

a parking lot serving the complex that is less than six hundred 

feet from the Newsome Park Elementary School. 

 The apartment complex is located on private property posted 

with “No Trespassing” signs. There was also a letter on file 

with the Police Department authorizing the police to enforce the 

“No Trespassing” prohibition. 

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 The police suspected that an “open-air drug market” was 

being operated on the parking lot; they had made “a lot [of 

arrests] dealing with narcotics” and had seized “various amounts 

of mostly marijuana.” Officers Hahn and Turlington positioned 

themselves in a vacant apartment overlooking the parking lot. 

Using binoculars, Officer Hahn saw Fullwood pull into the 

parking lot and park his car near a dumpster. He alighted from 

the car and remained in the area talking to “people out there 

loitering around.” 

 About 3:30 p.m., a pickup truck pulled into the parking lot 

and stopped twenty to thirty yards away from Fullwood’s car. 

The driver of the pickup “never got out.” Within a twentysecond span, Fullwood approached the driver’s window of the 

pickup, had a brief conversation with the driver, and “appeared 

to get . . . money, currency” from him. Fullwood then walked to 

his car, opened the trunk, and got “a small item” out of a 

backpack. Fullwood walked back to the pickup, where the driver 

put out his hand, palm up, into which Fullwood “appeared to drop 

something.” Fullwood walked away and entered one of the 

apartments, where he stayed for “a couple minutes.” The driver 

of the pickup exited the parking lot. 

 Officer Hahn radioed “surrounding units that were acting as 

take-down units” and gave them a description of the pickup truck 

and described what he had observed. J.V. Polak, a sergeant of 

4
the Police Department, observed the pickup on a nearby street, 

conducted a traffic stop, and gave the driver Miranda warnings. 

Sergeant Polak recovered “[a] clear plastic bag containing 

suspected marijuana” from the driver. 

 Officer Hahn later observed another suspected sale when a 

vehicle pulled into the parking lot and a passenger wearing a 

“Georgetown Hoyas jacket” got out and engaged Fullwood in a 

brief conversation. The two then went to the trunk of 

Fullwood’s vehicle where Fullwood retrieved a “plastic bag that 

looked like it had an off-white substance inside of it.” 

Fullwood “received money” and “did the exchange with the 

gentleman in the Hoyas jacket,” who got into his car and drove 

away. He was not arrested because Officer Hahn did not have an 

officer “to take down that suspected buyer.” 

 About 5:43 p.m., Sergeant Polak arrived at the parking lot 

and observed Fullwood walking around. Polak approached 

Fullwood, placed him under arrest, and told him that there would 

be a search of his car. Fullwood told Sergeant Polak that 

“there was a gun in the trunk,” and when Sergeant Polak said he 

“believed there was marijuana in the trunk,” Fullwood said 

“there was about two ounces in the trunk.” 

 The trunk was opened and on the top of the spare tire 

Sergeant Polak recovered “a Ruger P95DC semiautomatic handgun 

with a magazine containing 15 rounds of live ammunition.” Polak 

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also found in the backpack a clear plastic bag that contained 

forty-seven individually wrapped chunks of cocaine, two small 

pieces of individually wrapped cocaine, another clear plastic 

bag with a large chunk of crack cocaine, and two clear plastic 

bags with forty individually wrapped bags of marijuana inside. 

In addition, Sergeant Polak recovered from Fullwood’s pants 

pockets three pieces of crack cocaine along with $203.00 in cash 

and a cellular phone. 

THE ISSUES 

 Fullwood does not dispute that he possessed both cocaine 

and marijuana within one thousand feet of a school or that he 

intended to distribute both drugs. He does dispute that he 

possessed the drugs while on public property or property open to 

public use. On its part, the Commonwealth does not contend that 

the parking lot where the drugs were possessed is public 

property. Therefore, only the “property open to public use” 

portion of Code § 18.2-255.2 is pertinent to our review. 

 Fullwood also disputes that the circuit court could 

convict him of possessing both cocaine and marijuana without 

violating his guarantee against double jeopardy. Thus two 

questions are presented, (1) whether Fullwood was upon property 

open to public use while he possessed the drugs, and (2) whether 

his convictions for possessing both cocaine and marijuana with 

6
intent to distribute within 1,000 feet of a school violated the 

constitutional prohibition against double jeopardy. 

 Noting that Code § 18.2-255.2 is a penal statute, Fullwood 

relies on our decisions which have held that such laws “must be 

strictly construed against the state and limited in application 

to cases falling clearly within the language of the statute.” 

Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 

(1983); Hughes v. Commonwealth, 33 Va. App. 405, 408, 533 S.E.2d 

649, 650 (2000). We have made it clear that it is a fundamental 

rule of statutory construction that penal statutes are to be 

strictly construed against the Commonwealth and in favor of a 

citizen’s liberty. Harward v. Commonwealth, 229 Va. 363, 365, 

330 S.E.2d 89, 92 (1985). Such statutes may not be extended by 

implication; they must be applied to cases clearly described by 

the language used and the accused is entitled to the benefit of 

any reasonable doubt about the construction of a penal statute. 

Martin v. Commonwealth, 224 Va. 298, 300-01, 295 S.E.2d 890, 892 

(1982). None of these statements of basic principles, however, 

warrants the conclusion Fullwood asks us to draw in the 

circumstances of these offenses. 

 With respect to the issue whether the parking lot was 

property open to public use, Fullwood argues that the circuit 

court construed Code § 18.2-255.2 expansively to cover a case 

not clearly described by the language used. He says that 

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because the Newsome Park apartment complex was posted with “No 

Trespassing” signs, backed up by the letter on file in the 

Police Department, the parking lot where he possessed the drugs 

was private and not open to public use. 

 We disagree with Fullwood. The circuit court made a 

factual finding that the parking lot was property open to public 

use, and the record supports that finding. Fullwood does not 

challenge Officer Hahn’s characterization of the parking lot as 

an “open-air drug market” where the police made “a lot [of 

arrests] dealing with narcotics,” proving that “a lot” of 

members of the public used the lot. On the day in question, 

there were “people out there loitering around” in the parking 

lot and Fullwood spent practically his whole afternoon there, 

meanwhile serving two drug purchasers who arrived on the scene. 

The fact that they knew where to go to secure drugs would 

indicate they had been there before, and from the quantity of 

drugs Sergeant Polak recovered from the trunk of Fullwood’s car, 

it is obvious Fullwood anticipated the arrival of other 

potential purchasers of his wares before the day ended. Thus, 

it is clear on the record before us that the parking lot was 

“readily accessible” to members of the public who were not 

residents of the complex or whose presence was not authorized, 

including Fullwood. People v. Jiminez, 39 Cal. Rptr.2d 12, 13-

15 (Cal. Ct. App. 1995); see Smith v. Commonwealth, 26 Va. App. 

8
620, 626, 496 S.E.2d 117, 120 (1998) (holding that the area 

outside a convenience store was “property open to public use” 

because “[there was] no indication in the record that [the area] 

was blocked, closed, or in any way inaccessible to the public” 

and that “the participants to the drug transaction . . . had 

full access to the property on several occasions.”) 

 The fact that people might have been using the lot for 

illegal purposes does not affect the question whether it was 

“property open to public use.” Code § 18.2-255.2(A)(ii) is 

unambiguous in its meaning; it reads “property open to public 

use,” not “property open to legal public use,” and language 

cannot be added to change its meaning. Seguin v. Northrop 

Grumman Systems Corp., 277 Va. 244, 248, 672 S.E.2d 877, 879 

(2009). 

 There were, of course, many people using the lot for legal 

purposes, including the tenants of the apartment complex and 

their visiting friends and relatives, service personnel, 

mailmen, deliverymen, and others. More important, there would 

doubtless be many children, including students from the nearby 

elementary school, using the lot daily. It was to protect 

children from the “threat of harm” posed “when drug transactions 

take place within 1,000 feet of a school” that Code § 18.2-255.2 

was enacted. Commonwealth v. Burns, 240 Va. 171, 177, 395 

S.E.2d 456, 459 (1990). 

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 We have not overlooked Fullwood’s fervent reliance upon the 

“No Trespassing” signs posted in the apartment complex. He has 

repeatedly stressed the presence of the signs during his trial 

in the circuit court, in the briefs he has filed, and in oral 

argument before this Court. But he has not once stated where in 

the apartment complex the signs were posted and, most notably, 

there is not a shred of evidence in the record even suggesting 

that a sign was posted at the parking lot. One would expect 

that had there been a “No Trespassing” sign posted there, 

Fullwood would have favored us with an enlarged photograph. 

There being no evidence of any posted restriction on accessing 

the parking lot, much less active enforcement of such a 

prohibition, members of the public could not have reasonably 

anticipated being challenged regarding their use of the lot, and 

thus we conclude that the parking lot was “property open to 

public use” within the meaning of Code § 18.2-255.2(A)(ii). See

Smith, 26 Va. App. at 626, 496 S.E.2d at 120 (holding that the 

property in question was “open to public use,” in part, because 

the “participants to the drug transaction . . . had full access 

to the property . . . with no interruption from the owners of 

the establishment”); cf. United States v. Smith, 395 F.3d 516, 

520-21 (4th Cir. 2005) (holding, in a case involving whether an 

access road was a “highway” under Virginia law, that “[t]he 

presence of signs [posted along the roadway] barring public 

10
entry establishes that the access road is not open to public 

use”); Caplan v. Bogard, 264 Va. 219, 225, 226-29, 563 S.E.2d 

719, 722, 723-24 (2002) (holding that the lack of a physical 

barrier preventing “entrance to . . . a privately maintained 

parking lot” did not alone suffice to raise a presumption that 

the route was a “highway” under Virginia law, i.e., a route 

“open to the use of the public for purposes of vehicular 

travel”) (internal quotation marks omitted). 

 This brings us to the double jeopardy issue. Fullwood 

argues that the circuit court again violated the principles of 

statutory construction in convicting him of two violations of 

Code § 18.2-255.2 and subjecting him to the mandatory minimum 

penalty for a second offense “even though there was only a 

single occasion or transaction in which controlled substances 

were held for sale or distribution.” 

 Fullwood contends that the General Assembly intended in 

enacting Code § 18.2-255.2 to deter “drug transactions, not the 

possession of individual drugs per se,” and if the intention of 

the legislature had been to provide for prosecution “on a persubstance basis, it could have indicated so.” We cannot add 

this provision to the statute, Fullwood asserts, and, without 

it, the statute permits the prosecution of only one offense, 

regardless of the number of drugs he possessed. Hence, Fullwood 

concludes, the circuit court’s application of the statute 

11
permits multiple punishments for the same offense in violation 

of the double jeopardy clauses of the Constitution of the United 

States and the Constitution of Virginia. 

 Both double jeopardy clauses protect against a second 

prosecution for the same offense after acquittal. They also 

forbid a second prosecution for the same offense after 

conviction. And they prohibit multiple punishments for the same 

offense. Brown v. Ohio, 432 U.S. 161, 165 (1977); Blythe v. 

Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981). 

 Whether there has been a double jeopardy violation presents 

a question of law requiring a de novo review. See United States 

v. Imngren, 98 F.3d 811, 813 (4th Cir. 1996). In such a review, 

the rule is that “[w]here consecutive sentences are imposed at a 

single criminal trial, the role of the constitutional guarantee 

is limited to assuring that the court does not exceed its 

legislative authorization by imposing multiple punishments for 

the same offense.” Brown, 432 U.S. at 165. 

 We disagree with Fullwood’s contention that there was only 

a single transaction in which controlled substances were held 

for sale or distribution within 1,000 feet of a school and which 

would support only one conviction. There was one transaction 

involving marijuana in Fullwood’s encounter in the parking lot 

with the driver of the pickup truck and a second transaction 

12
involving cocaine in Fullwood’s meeting in the parking lot with 

the driver wearing a “Hoyas jacket.” 

 Code § 18.2-255.2 clearly makes these two transactions two 

offenses and displays the legislative intent that they should be 

subject to multiple punishments. Subsection B of the statute 

provides that “[v]iolation of this section shall constitute a 

separate and distinct felony” with punishment at a certain level 

for a first conviction but at an enhanced level for a “second or 

subsequent conviction” involving certain classified controlled 

substances or more than one-half ounce of marijuana. To hold 

that Fullwood’s two transactions constituted only one offense 

would amount to writing out of the statute the language 

concerning a “second or subsequent conviction,” and we are not 

inclined to do that. 

CONCLUSION 

 We hold that the circuit court did not err in finding that 

the violations in question occurred on “property open to public 

use” under Code § 18.2-255.2(A)(ii) and that the court did not 

exceed its legislative authorization in sentencing Fullwood to 

multiple punishments. Accordingly, we will affirm the judgment 

of the Court of Appeals. 

Affirmed. 

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