Sutherland v. Com.
| Decision Date | 17 May 1988 |
| Docket Number | No. 1444-86-2,1444-86-2 |
| Citation | 6 Va.App. 378,368 S.E.2d 295 |
| Parties | Christopher Allen SUTHERLAND v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Thomas L. Northam (Cowan & Owen, P.C., Richmond, on brief), for appellant.
Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: KOONTZ, C.J., and BENTON and COLE, JJ.
The defendant, Christopher Allen Sutherland, was convicted in a bench trial of grand larceny in violation of Code § 18.2-95. The sole issue on appeal is whether the Commonwealth proved that the offense was committed within the territorial jurisdiction of the trial court. We find that it did not and reverse the conviction.
Christopher Sutherland was indicted in Chesterfield County for grand larceny of a white 1980 Chevrolet Chevette belonging to Julie Fox. The indictment charged that the offense occurred in Chesterfield County. At the trial of the offense in Chesterfield County, Julie Fox testified that, on the morning of March 26, 1986, as she was leaving her residence at 2907 Sherwin Road, she discovered that her car, a white 1980 Chevrolet Chevette, was not parked in front of the house where she had left it the night before. She did not state in which city or county her residence was located. She immediately reported the theft to "the police."
Officer Francis of the Henrico County Sheriff's Department testified that, on March 28, 1986, he recognized a car fitting the description of Fox's in Henrico County. A chase ensued and the defendant ultimately was apprehended. The car was towed to the Henrico County impound lot and Officer Francis contacted Chesterfield County police. Chesterfield County police then proceeded to investigate the case.
At the close of the Commonwealth's case, Sutherland moved to strike the evidence for failure of the evidence to show that he "did take, steal and carry away [Fox's] automobile from Chesterfield County." The court overruled the motion, and Sutherland was convicted and sentenced to three years imprisonment.
On appeal, Sutherland contends that the Commonwealth failed to establish venue in Chesterfield County. The Commonwealth contends that the defendant is procedurally barred from raising the issue on appeal and that, in any event, it has adequately shown by certain indirect and circumstantial evidence the situs of the crime to be within the County of Chesterfield. We disagree.
"[Q]uestions of venue must be raised before 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. The reason for this rule is simple: "It seldom happens that there is any real merit in an exception based upon a failure to prove venue, unless the question has been developed and made the subject of serious inquiry before verdict." West v. Commonwealth, 125 Va. 747, 752, 99 S.E. 654, 655 (1919). Furthermore, "[t]he failure clearly to prove venue is usually due to inadvertence, flowing naturally from the familiarity of court, counsel, witnesses and jurors with the locality of the crime." Byrd's Case, 124 Va. 833, 839, 98 S.E. 632, 634 (1919). By calling the court's attention to the question of venue prior to a finding of guilt, the court may in appropriate circumstances take judicial notice of the location of the crime, see Randall v. Commonwealth, 183 Va. 182, 189, 31 S.E.2d 571, 573 (1944), or the Commonwealth can move to reopen its case to establish venue. See McClain v. Commonwealth, 189 Va. 847, 855, 55 S.E.2d 49, 52-53 (1949). An appeal and possible retrial are thus avoided.
The Commonwealth contends that Sutherland is procedurally barred by Code § 19.2-244 from raising the question of venue on appeal because he did not adequately raise the issue in the trial court prior to a finding of guilt. We disagree. The Virginia Supreme Court has impliedly upheld the use of the motion to strike to challenge venue. See Randall, 183 Va. at 185, 31 S.E.2d at 572. At the close of the Commonwealth's evidence, Sutherland moved to strike the evidence for failure of the Commonwealth to prove that he "did take, steal, and carry away [Fox's] automobile from Chesterfield County." In other words, the Commonwealth failed to establish that the crime occurred in Chesterfield County. While Sutherland could have stated his venue objection more clearly, we find that his objection was sufficient to put the trial court on notice that venue was in question.
The question of venue being properly before us, we now determine whether venue was, in fact, established. Venue is proper in the city or county where the offense occurred. Code § 19.2-244. Pollard v. Commonwealth, 220 Va. 723, 725, 261 S.E.2d 328, 330 (1980) (citing Keesee v. Commonwealth, 216 Va. 174, 175, 217 S.E.2d 808, 810 (1975)). "The facts proved may be aided by judicial notice of geographical facts that are matters of common knowledge or shown by maps in common use." McClain, 189 Va. at 853, 55 S.E.2d at 52.
In this case, no direct evidence of venue was produced. However, the Commonwealth relies on certain circumstantial evidence to support proof of venue. It asserts that the fact that Fox reported the theft to the police, that Chesterfield County police investigated the case after an Henrico County officer discovered the car in Henrico County, and that the indictment stated that the crime occurred in Chesterfield County, support an inference that the crime was committed in Chesterfield County. The Commonwealth's reliance on these facts is mistaken. Allegations of venue contained solely in an indictment cannot supply proof. See Anderson v. Commonwealth, 100 Va. 860, 863, 42 S.E. 865, 865 (1902). The mere fact that police of a certain jurisdiction investigate a crime cannot support an inference that the crime occurred within their jurisdiction. Keesee, 216 Va. at 175, 217 S.E.2d at 810.
In West v. Commonwealth, 125 Va. 747, 99 S.E. 654 (1919), a husband and wife testified that property was stolen from their home on Sycamore Street. They neglected to state, and they were not asked, in which jurisdiction their home was located. They telephoned the "local police" to report the theft, and "local police" investigated the theft and testified at trial. The indictment charged that the offense occurred in Petersburg and that was where the trial was held. Id. at 750-51, 99 S.E. at 655. In finding that venue had been established, the...
To continue reading
Request your trial
-
Williams v. Commonwealth
...test at issue, any taking of judicial notice must be clear in the record. See id. at 333-34, 771 S.E.2d 675 ; Sutherland v. Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295 (1988). Although "a trial court need not intone the words ‘judicial notice’ in order to notice a fact, the evidence, ......
-
Romero v. Commonwealth, Record No. 0050-13-4
...burden to establish venue" because "venue is not part of the crime" (internal quotation marks omitted)); Sutherland v. Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295, 298 (1988) (reversing and remanding "for further proceedings, if the Commonwealth be so advised," because although "the C......
-
In re State
...not an error that stems from the insufficiency of evidence with respect to the guilt or innocence of the accused. Sutherland v. Com., 6 Va.App. 378, 368 S.E.2d 295, 298 (1988). "It implies nothing with respect to the guilt or innocence of the defendant." Burks v. United States, 437 U.S. 1, ......
-
Taylor v. Com.
...received in the court at the clerk's office." "[T]he fact of judicial notice must appear from the record." Sutherland v. Commonwealth, 6 Va.App. 378, 383, 368 S.E.2d 295, 298 (1988) (citing Keesee v. Commonwealth, 216 Va. 174, 175, 217 S.E.2d 808, 809 (1975) (per curiam)). Although the cour......