Kelso v. Commonwealth Of Va., Record No. 0316-09-2.

• Docket Nº: Record No. 0316-09-2.
• Citation: 698 S.E.2d 263, 57 Va.App. 30
• Case Date: August 31, 2010
• Court: Court of Appeals of Virginia

57 Va.App. 30
698 S.E.2d 263

Harry Murphy KELSO
v.
COMMONWEALTH of Virginia.

Record No. 0316-09-2.

Court of Appeals of Virginia,
Richmond.

Aug. 31, 2010.

698 S.E.2d 264

Melissa W. Friedman (Anthony F. Anderson, Roanoke; Anderson & Friedman, on briefs), for appellant.

Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: PETTY and ALSTON, JJ., and WILLIS, Senior Judge.

PETTY, Judge.

Appellant, Harry Murphy Kelso, was convicted of three counts of causing a juvenile to assist in the distribution of marijuana in violation of Code § 18.2-255(A)(ii).¹ On appeal, Kelso contends that the Hanover

698 S.E.2d 265

County Circuit Court lacked territorial jurisdiction and that Hanover County was not the proper venue for prosecution because the offenses occurred in Henrico County. Because Kelso failed to argue jurisdiction at trial, we conclude that the issue was waived and we decline to reach its merits. Further, we conclude that the evidence established a strong presumption that the crime occurred in Hanover County and we, therefore, affirm his convictions.I. Background

Harry Kelso repeatedly sold marijuana to M.B.² in Henrico County who then sold it to a police informant in Hanover County. On three separate occasions, the informant met M.B. at a gas station in Hanover County and gave him five hundred dollars. M.B. then drove to Kelso's apartment in Henrico County, purchased marijuana from Kelso, and then returned to Hanover County and delivered the marijuana to the informant. Each of these transactions was monitored by Investigator Frank Wayne of the Hanover County Sheriff's Office.

On August 8, Investigator Wayne followed M.B. and another individual from M.B.'s place of employment in Hanover County to Kelso's apartment in Henrico County. After M.B. and his companion left Kelso's apartment, the police stopped them and found 1.4 ounces of marijuana on M.B. and 2.9 ounces of marijuana on the other individual. The police executed a search warrant on Kelso's apartment and found 39.94 ounces of marijuana, two digital scales with green plant material on them, a black trash bag with 2.95 ounces of marijuana, four plastic bags with 14.48 ounces of marijuana, and eleven hundred and eighty six dollars in cash.

During the search, Kelso entered the apartment and identified himself to Investigator Wayne. Investigator Wayne read him his Miranda rights and asked him several questions about the marijuana and M.B. Kelso admitted to selling marijuana to M.B. at least once a week. The trial court convicted him of three counts of causing a juvenile to assist in the distribution of marijuana to another juvenile in violation of Code § 18.2-255(A)(ii).

II. Analysis

Kelso argues that the Circuit Court of Hanover County had neither jurisdiction nor venue over this prosecution.³ “Venue and jurisdiction, though sometimes confounded, are, accurately speaking, separate and distinct matters.” Porter v. Commonwealth, 276 Va. 203, 230, 661 S.E.2d 415, 428 (2008). Because Kelso did not argue that the trial court lacked territorial jurisdiction, he waived that issue on appeal. Rule 5A:18; see Porter, 276 Va. at 229-30, 661 S.E.2d at 427-28 (noting that although lack of subject matter jurisdiction is not waivable under Rule 5A:18, territorial jurisdiction is waived if not timely raised). Thus, the sole issue before us is whether the evidence, when viewed in the light most favorable to the Commonwealth, established that the appropriate venue for prosecution was Hanover County.

The General Assembly has clearly provided that, “[e]xcept as otherwise provided by law, the prosecution of a criminal case shall be had in the county or city in which the offense was committed.” Code § 19.2-244. However, “[p]roof of venue ‘ “is not a part of the crime.” ’ ” Morris v. Commonwealth, 51 Va.App. 459, 469, 658 S.E.2d 708, 712 (2008) (quoting Randall v. Commonwealth, 183 Va. 182, 187, 31 S.E.2d 571, 573 (1944)). Thus, “the prosecution need not ‘prove where the crime occurred beyond a reasonable doubt, since venue is not a substantive

698 S.E.2d 266

element of a crime.’ ”⁴ Id. at 469, 658 S.E.2d at 712-13 (quoting United States v. Griley, 814 F.2d 967, 973 (4th Cir.1987)). Rather, the Commonwealth need only “produce evidence sufficient to give rise to a ‘strong presumption’ that the offense was committed within the jurisdiction of the court, and this may be accomplished by either direct or circumstantial evidence.” Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990) (quoting Pollard v. Commonwealth, 220 Va. 723, 725, 261 S.E.2d 328, 330 (1980)).

Kelso was charged with one count of conspiracy to sell more than five pounds of marijuana and three counts of causing a juvenile to assist in the distribution of marijuana. He concedes that venue was proper for the charge of conspiracy, but contends that venue was improper for the other three charges under Code § 18.2-255(A)(ii). Kelso argues that because he distributed the marijuana to M.B. in Henrico County, venue is improper in Hanover County. He contends that the distribution of drugs is not a continuing offense, see Moreno v. Baskerville, 249 Va. 16, 19-20, 452 S.E.2d 653, 655 (1995), and, as a result, Code § 18.2-255(A)(ii) is not a continuing offense. Thus, he concludes that once the distribution was completed in Henrico, the crime was completed there also. We disagree.

“Venue depends on the ‘nature of the crime alleged and the location of the act or acts constituting it.’ ” Morris, 51 Va.App. at 464, 658 S.E.2d at 711 (quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946)). “For most crimes, venue is proper in the jurisdiction where all the elements of the completed crime were committed.” Gheorghiu v. Commonwealth, 54 Va.App. 645, 655, 682 S.E.2d 50, 55 (2009) (emphasis in original) (citing Green v. Commonwealth, 32 Va.App. 438, 448, 528 S.E.2d 187, 192 (2000) (finding the Commonwealth must generally establish venue with evidence that supports a strong presumption that all elements of the offense occurred within the selected venue)). However, if the offense is a continuing one, and “ ‘an act or series of acts runs through several jurisdictions, the offense is committed and cognizable in each.’ ” Morris, 51 Va.App. at 467, 658 S.E.2d at 712 (quoting Thomas v. Commonwealth, 38 Va.App. 319, 324, 563 S.E.2d 406, 409 (2002)). A crime is considered a continuing offense if it is “ ‘a continuous, unlawful act or series of acts set on foot by a single impulse and operated by an unintermittent force, however long a time it may occupy.’ ” Id. (quoting Thomas, 38 Va.App. at 324, 563 S.E.2d at 409).

Code § 18.2-255(A) provides that “it shall be unlawful for any person who is at least 18 years of age to knowingly and intentionally (i) distribute ......