Kelso v. Commonwealth Of Va.

• Decision Date: 31 August 2010
• Docket Number: Record No. 0316-09-2.
• Citation: 698 S.E.2d 263,57 Va.App. 30
• Court: Virginia Court of Appeals
• Parties: Harry Murphy KELSOv.COMMONWEALTH of Virginia.

57 Va.App. 30

698 S.E.2d 263

Harry Murphy KELSOv.COMMONWEALTH of Virginia.

Record No. 0316-09-2.

Court of Appeals of Virginia Richmond.

Aug. 31, 2010.

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 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 element of a crime.’ ”⁴Id. 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 ... marijuana to any person under 18 years of age who is at least three years his junior, or (ii) cause any person under 18 years of age to assist in such distribution of ... marijuana.” Kelso was indicted and convicted under part (ii) of subsection (A). Before we can determine where the unlawful acts occurred, we must discern the elements of the crime.

“Under principles of statutory construction, we must consider the ordinary and plain meaning of statutory terms.” Winborne v. Virginia Lottery, 278 Va. 142, 148, 677 S.E.2d 304, 306 (2009). When interpreting a statute, our objective is to interpret the statute “in accordance with the intent of the legislature.” Id. (citing Virginia Cellular LLC v. Virginia Dep't of Taxation, 276 Va. 486, 490, 666 S.E.2d 374, 376 (2008)). We typically deduce the intent of the legislature “from the words contained in the statute.” Baker v. Commonwealth, 278 Va. 656, 660, 685 S.E.2d 661, 663 (2009) (quoting Elliott v. Commonwealth, 277 Va. 457, 463, 675 S.E.2d 178, 182 (2009)). In doing so, we must give “proper grammatical effect ... to the arrangement of words in a sentence of a statute,” Harris v. Commonwealth, 142 Va. 620, 624, 128 S.E. 578, 579 (1925), and we must presume that the General Assembly understood basic rules of grammar when drafting the statute Frere v. Commonwealth, 19 Va.App. 460, 464, 452 S.E.2d 682, 685 (1995). “Additionally, ‘[i]n accordance with principles of statutory construction of penal statutes, a court must not add to the words of the statute nor ignore the words of the statute and must strictly construe the statute and limit its application to cases falling clearly within the statute.’ ” Baker, 278 Va. at 660-61, 685 S.E.2d at 663 (quoting Farrakhan v. Commonwealth, 273 Va. 177, 181-82, 639 S.E.2d 227, 230 (2007)). The intent of Code § 18.2-255(A)(ii) is to prevent adult drug dealers from using a juvenile to assist in the sale or distribution of marijuana. It begins by limiting the characteristics of the offender to those persons who are over eighteen years of age. It then describes the requisite intent as “knowingly and intentionally.” And lastly, the statute describes the illegal act as “caus[ing] [a juvenile] to assist in [the] distribution of ... marijuana.” ⁵ This language clearly envisions three distinct individuals involved in a drug transaction: the adult offender, the juvenile assistant, and the purchaser. The operative verb describing the illegal act is “cause.” The verb “cause” is defined as “[t]o bring about or effect.” Black's Law Dictionary 251 (9th ed.2009). The indirect object of the verb, or in other words, the recipient of the subject's action, is the juvenile assistant, and the direct object is “to assist in such distribution of ... marijuana” to the purchaser. According to the terms used by the General Assembly, the gravamen of the offense is causing the juvenile assistant to play some role in the distribution of marijuana to another. Thus, by providing a more lengthy punishment for the use of juveniles by drug dealers in a drug transaction, the statute attempts to discourage drug dealers from targeting minors as both patrons...