734 S.E.2d 692
Va. Ct. App.2012Background
- Bonner was convicted in Brunswick County Circuit Court of altering a firearm's serial number (Code §18.2-311.1), threatening language over the phone (Code §18.2-427), and possession of a firearm by a felon (Code §18.2-308.2.
- Bonner, a Dinwiddie County resident, allegedly altered the serial number; the gun was later recovered at arrest with a defaced serial number.
- Evidence showed Bonner at or near Brunswick County locations (Davis Truck Stop) and prior possession of the weapon in Dinwiddie County; trial record lacked a specific Brunswick venue for the alteration event.
- Bonner moved to strike the 18.2-311.1 charge on venue grounds; the trial court denied the motion and found venue in Brunswick County.
- The Commonwealth argued the offense is continuing and venue was proper where Bonner possessed or affected the weapon; the court rejected this, holding 18.2-311.1 is a discrete act.
- The Court of Appeals reversed and remanded for a new trial in proper venue if advised.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Brunswick County proper venue for 18.2-311.1? | Bonner | Bonner | Venue not established; reversed and remanded |
| Is 18.2-311.1 a continuing offense for venue purposes? | Commonwealth | Bonner | Not a continuing offense; discrete act |
| Did the record show that the requisite elements occurred in Brunswick County? | Commonwealth | Bonner | Record insufficient to prove Brunswick as locus; reversed |
Key Cases Cited
- Gregory v. Commonwealth, 237 Va. 354 (1989) (evil results doctrine; venue can lie where harm occurs)
- Foster-Zahid v. Commonwealth, 23 Va.App. 430 (1996) (custodial interference venue where harm occurs; distinguishes from serial-number case)
- Davis v. Commonwealth, 14 Va.App. 709 (1992) (strong presumption for proper venue required)
- Pollard v. Commonwealth, 220 Va. 723 (1980) (burden on Commonwealth to prove venue)
- Kelso v. Commonwealth, 282 Va. 134 (2011) (application of general venue statutes; discrete acts)
- Gregory v. Commonwealth, 237 Va. 354 (1989) (discussed for locus delicti and venue principles)
- United States v. Midstate Horticultural Company, 306 U.S. 161 (1939) (continuing offense concept in venue context)
- Marzzarella v. United States, 614 F.3d 85 (2010) (importance of serial numbers for tracing firearms)