Tanner v. Commonwealth
| Decision Date | 05 May 2020 |
| Docket Number | Record No. 1706-18-2 |
| Citation | 841 S.E.2d 377,72 Va.App. 86 |
| Parties | Brent Edward TANNER v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Richard G. Collins, Williamsburg (Collins & Hyman, P.L.C., on brief), for appellant.
Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges O’Brien and AtLee
OPINION BY CHIEF JUDGE MARLA GRAFF DECKER
Brent Edward Tanner appeals his conviction for felony obstruction of justice in violation of Code § 18.2-460(C). He asserts that the trial court erred by finding that the evidence was sufficient to establish venue. He also contends that his interference with a prosecution for attempted arson was not a crime covered by the felony portion of the obstruction statute. We hold that the evidence supports a finding that venue was proper. We further conclude that the appellant’s obstructive behavior with regard to his trial for attempted arson is proscribed by Code § 18.2-460(C). Consequently, we affirm the challenged conviction.
On March 26, 2018, Deputy C. Grant of the Charles City County Sheriff’s Office responded to a 911 call. The call took him to a residence in the county shared by the appellant and his longtime girlfriend, Sandra Dickerson. Upon arriving, the deputy found the appellant fighting with another man, Timothy English. The appellant smelled of alcohol and gasoline. Grant found a gasoline can near the residence and noticed wet spots that smelled like gasoline on and around the outside of the house. After taking statements from Dickerson and the appellant, the deputy arrested him for attempted arson.
About six weeks later, the appellant called Dickerson from the Riverside Regional Jail. In the ensuing conversation, which was recorded by jail personnel, the appellant told her "not to show up" for court and that "he didn't want [her] to come."
The appellant was subsequently indicted in Charles City County for attempted arson. He was also indicted for felony obstruction of justice based on the telephone call he made to Dickerson from jail. The obstruction indictment, in pertinent part, charged that the appellant, "by threats of bodily harm or force[,] knowingly attempt[ed] to intimidate or impede a witness lawfully engaged in her duty, or to obstruct or impede the administration of justice in any court relating to a violation of a violent felony offense (attempted arson)."
At the appellant’s trial, the Commonwealth presented testimony from Deputy Grant, Dickerson, and English about the appellant’s attempted arson and obstruction of justice. Dickerson explained that on the day of the altercation, the appellant repeatedly threated to burn her and the house "to the ground." She further related that he threw gasoline toward her and the house and "flicked" his lighter. Dickerson confirmed that the appellant called her from jail following his arrest and told her "not to show up" for court. Additionally, the Commonwealth played the jail’s recording of the telephone conversation. That recording confirmed Dickerson’s testimony that the appellant told her not to "come to court." It also contained his statement that if she did appear in court, it would "affect" her, her son, and her "whole family" and that she would not "wanna know [him] when [he got] out."
The appellant testified in his own behalf. He conceded, among other things, that he telephoned Dickerson from jail and asked her not to come to court. He claimed, though, that he did so as part of a request to her to "stop lying" about what happened.
At the close of the Commonwealth’s evidence and again at the close of all the evidence, the appellant made a motion to strike the obstruction of justice charge on two grounds. He claimed that the Commonwealth failed to prove venue. He also argued that the obstruction statute under which he was charged did not proscribe interference with attempt crimes, in his case attempted arson. The court denied the motions.
The trial court convicted the appellant of attempted arson and obstruction of justice but suspended all of the five-year sentence for obstruction.
The appellant asserts that the Commonwealth failed to establish venue for the obstruction offense. He also contends that his interference with the Commonwealth’s effort to prosecute him for an attempt crime was not an offense punishable as felony obstruction under Code § 18.2-460(C).
The appellant argues that the circuit court erred by concluding that the evidence proved that venue was proper in Charles City County.
Our review is guided by well-established principles. "A crime must generally be tried where it occurred," a concept referred to as venue. Gerald v. Commonwealth, 295 Va. 469, 482, 813 S.E.2d 722 (2018) (quoting Garza v. Commonwealth, 228 Va. 559, 566, 323 S.E.2d 127 (1984) ). More precisely, venue is "the territorial jurisdiction authorizing the court to adjudicate among the parties at a particular place." Porter v. Commonwealth, 276 Va. 203, 230, 661 S.E.2d 415 (2008). The primary purpose of statutory venue provisions is to "protect criminal defendants from the inconvenience and prejudice of prosecution in a far-flung district bearing no connection to their offenses." United States v. Smith, 452 F.3d 323, 334 (4th Cir. 2006).
In a criminal trial, the Commonwealth bears the burden of proving venue. Williams v. Commonwealth, 289 Va. 326, 332, 771 S.E.2d 675 (2015). To do so, it must produce evidence sufficient to give rise to "a ‘strong presumption’ that the offense was committed within the territorial jurisdiction of the court." Id. (quoting Harding v. Commonwealth, 132 Va. 543, 548, 110 S.E. 376 (1922) ); see also Gheorghiu v. Commonwealth, 280 Va. 678, 689, 701 S.E.2d 407 (2010) (). When an appellate court reviews a challenge to proof of venue, it considers whether the evidence, viewed "in the light most favorable to the Commonwealth," is sufficient to support the trial court’s venue finding. Bonner v. Commonwealth, 62 Va. App. 206, 211, 745 S.E.2d 162 (2013) (en banc ) (quoting Taylor v. Commonwealth, 58 Va. App. 185, 190, 708 S.E.2d 241 (2011) ).
Virginia’s venue statute directs that, in the absence of a special statute providing otherwise, "the prosecution of a criminal case shall be had in the county or city in which the offense was committed." Code § 19.2-244(A). Venue "will generally be proper wherever any element of the offense occur[ed]." Bonner, 62 Va. App. at 211, 745 S.E.2d 162. Therefore, application of the statute "requires an examination of the elements of [the charged] crime." McGuire v. Commonwealth, 68 Va. App. 736, 741, 813 S.E.2d 552 (2018).
Additionally, however, "venue is proper in the jurisdiction where the direct and immediate result" of the illegal act occurred. Kelso v. Commonwealth, 282 Va. 134, 138, 710 S.E.2d 470 (2011). A person may be charged in the place where his actions cause harm, regardless of whether he is present in that jurisdiction when he commits the act that triggers the harm. Spiker v. Commonwealth, 58 Va. App. 466, 471, 711 S.E.2d 228 (2011) (citing Jaynes v. Commonwealth, 276 Va. 443, 452, 666 S.E.2d 303 (2008) ).
Here, the offense at issue was obstruction of justice in violation of Code § 18.2-460(C). The indictment charged the appellant with "knowingly attempt[ing] to intimidate or impede a witness lawfully engaged in her duty, or to obstruct or impede the administration of justice in any court relating to a violation of a violent felony offense (attempted arson)." Thus, the indictment alternatively charged both means by which Code § 18.2-460(C) may be violated.2
The record contains no proof that either the appellant or Dickerson, the witness he threatened, was in Charles City County when the threatening telephone call took place.3 Accordingly, the Court must evaluate whether the evidence shows that the "direct and immediate result" of the threatening act to impede the administration of justice occurred in Charles City County, the location of the criminal trial. See Kelso, 282 Va. at 137-39, 710 S.E.2d 470 ().
When the crime of obstruction of justice is charged under the second clause of the statute, "knowingly attempt[ing] ... to obstruct or impede the administration of justice in any court," a court considering the charge may reasonably conclude that the "direct and immediate result" occurred where the judicial process was affected. See Code § 18.2-460(C) ; Kelso, 282 Va. at 138, 710 S.E.2d 470. Here, the court in which the appellant stood charged was in Charles City County, where the attempted arson occurred. Because the appellant interfered with a witness whose testimony was relevant for the trial of the arson charge pending in a court in that jurisdiction, his crime of obstruction caused a direct and immediate result there—interference with the justice system in that jurisdiction. Cf. McGuire, 68 Va. App. at 743-44, 813 S.E.2d 552 (). See generally Smith, 452 F.3d at 334 ().
The appellant contends that no harm was proved to have occurred in Charles City County because Dickerson appeared and testified against him at trial. He argues that venue consequently was proper only where he or Dickerson was located at...
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