841 S.E.2d 377
Va. Ct. App.2020Background
- On March 26, 2018 Brent Tanner was arrested in Charles City County after Deputy Grant responded to a 911 call; evidence at the scene suggested attempted arson (gasoline, threats, lighter).
- Tanner was indicted in Charles City County for attempted arson and, six weeks later, for felony obstruction under Va. Code § 18.2-460(C) after calling his girlfriend Sandra Dickerson from jail and telling her not to appear at court.
- Jail-call recording and witnesses corroborated that Tanner asked Dickerson not to come and warned it would “affect” her and her family if she did.
- At trial Tanner admitted making the call but said he asked Dickerson to stop lying; the trial court denied his motions to strike based on venue and statutory scope and convicted him of attempted arson and felony obstruction (sentence suspended).
- On appeal Tanner challenged (1) sufficiency of the evidence to establish venue in Charles City County for the obstruction charge, and (2) whether the felony obstruction statute covers interference with prosecutions for attempt crimes (here, attempted arson).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue for obstruction charge | Venue proper in Charles City County because the direct and immediate result of the obstructive act (interfering with the court proceeding) was felt in the county where the arson trial was pending (Commonwealth). | Venue not proven because neither Tanner nor Dickerson was shown to be in Charles City County when the telephone call occurred; thus the Commonwealth failed to prove the offense occurred there (Tanner). | Venue was proper in Charles City County; the obstruction’s direct and immediate result occurred where the judicial proceeding was pending, and success was not required. |
| Whether attempted arson is covered by Va. Code § 18.2-460(C) (felony obstruction) | § 18.2-460(C) incorporates Code § 17.1-805(C); that provision explicitly lists attempts as violent felonies, so attempted arson falls within the felony obstruction statute (Commonwealth). | § 18.2-460(C) by its text mentions only violations and conspiracies, not attempts; thus attempts should not be treated as falling within the felony obstruction provision (Tanner). | Attempted arson is covered. Because § 18.2-460(C) incorporates “any violent felony offense” listed in § 17.1-805(C) (which expressly includes attempts), the only reasonable construction includes attempts; the rule of lenity does not alter that outcome. |
Key Cases Cited
- Kelso v. Commonwealth, 282 Va. 134 (establishes venue where the direct and immediate result of defendant’s act was felt)
- McGuire v. Commonwealth, 68 Va. App. 736 (venue analysis requires examining elements; harm may be where effects are felt)
- Bonner v. Commonwealth, 62 Va. App. 206 (on review, evidence viewed in light most favorable to the Commonwealth for venue challenges)
- Blake v. Commonwealth, 288 Va. 375 (statutory construction principles and limited application of rule of lenity in criminal statutes)
- United States v. Smith, 452 F.3d 323 (venue’s purpose: require a connection between defendant’s conduct and prosecution forum)
- United States v. Kibler, 667 F.2d 452 (federal precedent permitting venue in the district where the affected judicial proceeding was pending for obstruction charges)