Sutherland v. Com., 1444-86-2
| Docket Nº | No. 1444-86-2 |
| Citation | 6 Va.App. 378, 368 S.E.2d 295 |
| Case Date | May 17, 1988 |
| Court | Court of Appeals of Virginia |
Page 295
v.
COMMONWEALTH of Virginia.
Page 296
[6 Va.App. 379] 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.
COLE, Judge.
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.
I.
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. [6 Va.App. 380] 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.
Page 297
II.
"[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. [6 Va.App. 381] 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...
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
...its 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 "t......
-
In re State
...is 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. ......
-
Taylor v. Com., Record No. 0938-96-2.
...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......