Morris v. Com., Record No. 0064-07-2.

• Docket Nº: Record No. 0064-07-2.
• Citation: 658 S.E.2d 708, 51 Va. App. 459
• Case Date: April 08, 2008
• Court: Court of Appeals of Virginia

658 S.E.2d 708 51 Va. App. 459 Katina Latrice MORRIS
v.
COMMONWEALTH of Virginia. Record No. 0064-07-2. Court of Appeals of Virginia, Richmond. April 8, 2008.

[658 S.E.2d 710]

Linwood T. Wells, III, for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FRANK and KELSEY, JJ., and COLEMAN, S.J.

COLEMAN, III, Judge.

51 Va. App. 463

Katina Latrice Morris was convicted in a bench trial of possession of heroin and possession of cocaine. On appeal, Morris asserts the evidence failed to establish that the offenses were committed within the trial court's jurisdiction "as the proper venue was not Hanover County, Virginia." The underlying argument to support Morris's assertion is that she was unconscious from a self-administered drug overdose when transported by emergency vehicle into Hanover County and, thus, she was not "knowingly and voluntarily" in possession of the drugs in that venue. For the reasons that follow, we disagree and affirm the trial court's decision.

BACKGROUND

"On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).

So viewed, the evidence proved that around midnight on December 12, 2005, Morris was transported by ambulance from a residence in Henrico County to a hospital in Hanover County. Hospital paramedic Vicki Merkle testified Morris was unresponsive when she arrived at the hospital and that she appeared to have overdosed on drugs. Merkle undressed Morris and discovered two syringes and a glass smoking device in Morris's right front pants pocket. From another pocket, Merkle removed a dollar bill exhibiting a white residue.

51 Va. App. 464

Deputy Steve Wills interviewed Morris in the hospital. Wills described Morris as being "unconscious" when he first encountered her. After she was revived, Wills advised Morris of her Miranda rights. Morris admitted to Wills that although the syringes were "clean" she possessed them for the purpose of injecting heroin. She also stated the glass tube was a "crack stem" that did not belong to her but that she had smoked crack cocaine out of it earlier that night. Finally, Morris told the deputy that the residue on the dollar bill was heroin. Testing confirmed the "crack stem" and dollar bill contained traces of cocaine and heroin.

In Morris's motions to strike, she argued, albeit obliquely, that the Commonwealth did not prove proper venue in Hanover County because the evidence failed to establish Morris knowingly possessed the drugs while in that county. She relies upon the uncontroverted evidence that she was unconscious when transported from Henrico into Hanover without her knowledge or consent.

ANALYSIS

Code § 19.2-239 confers jurisdiction on the respective circuit courts of this Commonwealth for "all presentments, indictments and informations for offenses committed within their respective circuits." Code § 19.2-239. Thus, a "criminal charge cannot be sustained unless the evidence furnishes the foundation for a `strong presumption' that the offense was committed within the jurisdiction of the court." Keesee v. Commonwealth, 216 Va. 174, 175, 217 S.E.2d 808, 809-10 (1975). "The burden is on the Commonwealth to prove venue by evidence which is either direct or circumstantial." Id. at 175, 217 S.E.2d at 809.

"`Questions of venue must be raised before the verdict in cases tried by a jury and before the finding of guilt in cases tried by the court without a jury.' Code § 19.2-244. Otherwise the question of venue is waived." Sutherland v. Commonwealth, 6 Va.App. 378, 380, 368 S.E.2d 295, 297 (1988). When venue is challenged on appeal, we determine

658 S.E.2d 711

51 Va. App. 465

"whether the evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to support the [trial court's] venue findings." Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990). Venue depends on the "nature of the crime alleged and the location of the act or acts constituting it." United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946). When a crime—if committed at all—must have occurred within the court's territorial jurisdiction, appellate approval of the sufficiency of the evidence necessarily subsumes the question of venue. "Accurately speaking," the Virginia Supreme Court has explained, a venue challenge in such a case is nothing more than the defendant claiming "the evidence is insufficient to establish his presence ... where and when the crime was committed." Williams v. Commonwealth, 188 Va. 583, 594, 50 S.E.2d 407, 412 (1948).

Morris does not contest that she actually possessed the narcotics in Hanover County or that she had knowingly and voluntarily possessed the drugs in Henrico. Instead, she contends that "[s]ince [she] was never conscious when she entered Hanover County, she never knowingly and intentionally possessed cocaine or heroin in Hanover County. If there was an offense committed," she reasons, "it should have been brought in Henrico County, not Hanover."

"In order to convict a person of illegal possession of an illicit drug, the Commonwealth must prove beyond a reasonable doubt that the accused was aware of the presence and character of the drug and that the accused consciously possessed it." Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998) (citation omitted). The Commonwealth may prove possession of a controlled substance by showing either actual or constructive possession. Birdsong v. Commonwealth, 37 Va.App. 603, 607, 560 S.E.2d 468, 470 (2002). To establish possession in the legal sense, not...