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Foley v. Commonwealth

Court of Appeals of Virginia

March 25, 2014

BENJAMINE LEONARD FOLEY, II
v.
COMMONWEALTH OF VIRGINIA

Page 474

FROM THE CIRCUIT COURT OF ROANOKE COUNTY. James R. Swanson, Judge.

(Neil A. Horn, on brief), for appellant. Appellant submitting on brief.

Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Humphreys, Beales and Huff Judges.

OPINION

Page 475

[63 Va.App. 190] ROBERT J. HUMPHREYS, JUDGE.

Benjamine Leonard Foley, II, (" Foley" ) appeals his conviction for carrying a concealed weapon in violation of Code § 18.2-308(A) by the Roanoke County Circuit Court (the " trial court" ). Foley's single assignment of error is that the " trial court erred when it found the easement over Foley's property was excluded from being considered part of the curtilage of his dwelling," and therefore Foley could not avail himself of the exception provided in Code § 18.2-308(B).

I. Background

" On appeal, we view the facts established at trial in the 'light most favorable' to the prevailing party below, in this case the Commonwealth, and we grant to that party all fair inferences flowing from those facts." Crawford v. Commonwealth, 55 Va.App. 457, 462 n.1, 686 S.E.2d 557, 559 n.1 (2009) (citations omitted). In this light, the evidence establishes the following.

Holly Tree Road is a one-mile-long, privately maintained, dead-end, dirt road that is " long, narrow, and winding." Holly Tree Road bisects Foley's four-acre property--that portion of the road is still Foley's property but is subject to a non-exclusive [63 Va.App. 191] easement. Where Holly Tree Road crosses Foley's property, on one side is Foley's house, and on the other side is his " garage" and/or " junkyard" where Foley keeps his farm equipment and " a bunch of scrap stuff for working on whatever."

Foley's residence is the second to last house, and Thomas Smallwood's (" Smallwood" ) residence is the last house before Holly Tree Road dead ends. Smallwood's property was gifted to him by deed in 1988 by Foley. In the 1988 deed, Foley and his

Page 476

wife also conveyed to Smallwood " an 18-foot wide easement over their remaining property for the purposes of ingress and egress to a private road[,] which is the subject of a non-exclusive easement to the parties of the first part [Foley and his wife]." This easement allows Smallwood to access his house at the end of Holly Tree Road. There are fifteen other residences on Holly Tree Road, however those homes are all located before Foley's property.

On the evening of March 21, 2012, Smallwood called his brother-in-law and next-door neighbor, Foley, to ask for a favor. Smallwood told Foley that his daughter (Foley's niece) and granddaughter were alone in Smallwood's house. Moments earlier, his daughter's boyfriend threatened to harm them and was en route to Smallwood's house. Smallwood asked Foley to block the road and not let ...


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