Goble v. Commonwealth Of Va.
| Decision Date | 14 September 2010 |
| Docket Number | Record No. 1976-09-3. |
| Court | Virginia Court of Appeals |
| Parties | Jon GOBLE, s/k/a Jonathon Thomas Goblev.COMMONWEALTH of Virginia. |
COPYRIGHT MATERIAL OMITTED
Dana R. Cormier (Dana R. Cormier, P.L.C., on brief), Staunton, for appellant.
Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: ELDER, and POWELL, JJ., and ANNUNZIATA, Senior Judge.
Jon Goble appeals his convictions for selling or offering to sell wild animal parts in violation of Code § 29.1-553. Goble argues that the trial court erred in exercising jurisdiction because the sales of the wild animal parts occurred in Pennsylvania. He further contends the Commonwealth bore the burden of proving the sales did not fall under a statutory exception and that if he, instead, bore the burden of proving application of a statutory exception as an affirmative defense, he met that burden. Finally, he contends the evidence failed to prove the aggregate value of the sales was greater than $200, as required under the statutory enhancement to punish him for a felony rather than a misdemeanor. For the reasons that follow, we affirm Goble's conviction and punishment for two misdemeanors and one felony.
On September 22, 2008, Officer Neil T. Kester of the Virginia Department of Game and Inland Fisheries (the Department) executed a search warrant at Goble's residence. Officer Kester was searching for records and documents, including electronic transactions on Goble's computer, pertaining to violations of Code § 29.1-553, specifically, the sale of a mounted black bear. During the search, Goble's computer was seized, and Goble voluntarily logged onto the computer for the officers and provided them with his user name and password for eBay, an international online sale and auction site through which users buy and sell a variety of merchandise.
With the user name and password Goble provided, Officer Kester was able to access Goble's eBay account. Officer Kester recovered evidence of three eBay listings for mounted deer heads 1 that Goble had listed and sold. The listings showed that Goble had sold one deer head mount on June 30, 2008, for $450, one on July 11, 2008, for $432.27, and one on September 7, 2008, for $510. The listings also indicated that, at the time they were listed, the deer head mounts were located in Milford, Pennsylvania. It was undisputed that Goble received payment for the sales through an online account while in Virginia.
Goble was indicted on six counts of selling or attempting to sell a wild animal or part thereof in violation of Code § 29.1-553. On May 21, 2009, Goble waived his right to a jury trial and pleaded not guilty to the charges against him.
At trial, the Commonwealth offered evidence that Goble did not have a valid taxidermy permit at the time of the search. Officer Kester also testified that as to each of the first six items on the inventory return, all of which were antlers, Goble did not have a tag or check card confirming his possession of them was legal.2 Kester testified it was the taxidermist's responsibility, when working with his own or a client's animal parts, to get either the check card, the check card number, or a confirmation number to confirm the legality of the possession.
Additionally, the trial court heard testimony from Mike Fies, a wildlife biologist and leader of the department's Furbear Project.3 Fies testified that the term “fur-bearing animals” refers specifically to animals that are commonly trapped.4
After the Commonwealth rested its case, Goble took the stand in his own defense. He testified that he had a taxidermy permit from November 3, 2006, through July 31, 2007. He acknowledged that his permit was revoked after he pled guilty to illegally possessing a “road kill fawn.” When he attempted to renew his permit, on November 28, 2007, the Department denied his application and informed him that he could not re-apply for a permit until August 2008. As a result of that letter, Goble claimed he “had a taxidermy permit” when he met with the Department's undercover officer on September 2, 2008, but he did not offer a copy of any such permit into evidence, and no evidence in the record shows that Goble ever obtained a new permit.
Regarding the mounted deer heads that were the subject of the prosecution, Goble provided three different accounts as to the origin of the deer hides he used to create them. He first testified that all three hides were “road kills” he had obtained from the police and that he had tags for all of them.5 He then stated “[he] believe[d] that two of [the hides] were [from] road kills” and that he “legally harvested” the third, meaning that he obtained it while hunting legally in season. Finally, he changed his testimony again, stating that the hides had come from any one of three sources: a road kill for which he had a tag, a legal harvest, or a butcher shop. With regard to the antlers, Goble stated that he bought them from a “Big Game Show” in Pennsylvania and then said that he “believe[d]” he bought one of the sets of the antlers on eBay.
Goble admitted that he posted the three mounted deer heads for sale on eBay while he was in Virginia but stated that, at the time he made the postings, the mounted deer heads were located in Pennsylvania and were shipped from there, as well. Goble explained that he stored the mounts at his father's house in Pennsylvania because he did not have enough room to store all of his mounted deer heads in his basement in Virginia. Goble's sister indicated Goble did all of his taxidermy work in the basement of his Virginia residence.
At the close of all the evidence, Goble moved to strike, and the trial court denied the motion, reasoning as follows: “[E]ven if he was in lawful possession of the antlers, ... he still sold deer antlers, and I can't find any authority for him to be able to do that.”
After hearing all of the evidence, the trial court ruled as follows:
The trial court subsequently determined that, because the aggregate of the three sales was greater than $200, Goble was guilty of one felony and two misdemeanors.6
Goble subsequently filed a motion to reconsider, arguing that he did not sell the antlers in Virginia and that, because the Commonwealth had failed to prove the value of the antlers alone was greater than $200, he was guilty, at most, of three misdemeanors. In a letter opinion of July 10, 2009, the trial court denied Goble's motion to reconsider. It expressly found Goble did not have a taxidermy license at the time of the June and July 2008 sales and that he failed to prove he had a license at the time of the September 2008 sale. It rejected Goble's claim that he did not sell the antlers in Virginia, noting that he listed the items for sale in Virginia and received payment in Virginia, regardless of where the items were shipped from, and holding that the act of attempting to sell was complete when Goble listed the items on eBay, “a marketing vehicle that surely reached a Virginia audience.” Finally, it addressed Goble's claim that the Commonwealth failed to prove the value of the antlers, the only items it had ruled were illegally sold. It rejected the claim, first, because Goble never raised at trial the issue that the Commonwealth failed to prove the value of the antlers by themselves. Second, it concluded Goble's sales of the hides on the mounts were also illegal. It characterized the issue of whether the deer were “legally taken or not” as an affirmative defense rather than an element of the crime itself and found Goble had failed to meet his burden of proving the issue to a level sufficient to raise a reasonable doubt as to his guilt. As a result, it concluded, the value of each deer head mount, as a whole, was the proper value.
Goble noted this appeal.
Goble argues that because the sales of the mounted deer heads did not occur in the Commonwealth, the trial court erred in exercising jurisdiction. He contends the undisputed evidence demonstrates that the title to the mounted deer heads passed in Pennsylvania and, therefore, that the sales occurred in Pennsylvania. On that ground, he argues he cannot be convicted under Code § 29.1-553(A).7 The Commonwealth, on the other hand, contends that the sales occurred in Virginia because Goble posted the mounted deer heads on eBay from his home and received payment in Virginia.
Under Code § 8.2-106, a “sale” is defined as “the passing of title from the seller to the buyer for a price.” The Code provides that “[u]nless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods....” Code § 8.2-401(2). In the case of an auction, the Code further provides that “[a] sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner.” Code § 8.2-328; see 1-4 Corbin on Contracts § 4.14 (2010) (...
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