Kelso v. Com.
282 Va. 134
Va.2011Background
- Kelso was charged with three counts of violating Code § 18.2-255(A)(ii) for causing a juvenile to assist in distributing marijuana.
- Confidential informants, paid by Hanover County deputies, bought marijuana from M.B., a juvenile (17 years old), on three spring 2007 occasions.
- M.B. conducted the transactions in Henrico County; the informant waited in Hanover County and returned with marijuana on the first occasion.
- On subsequent occasions, M.B. traveled from Hanover to Henrico to obtain marijuana from Kelso and then returned to Hanover for sale to the informant; deputies surveilled all transactions in Hanover.
- Kelso allegedly knew M.B. was under 18 and sold marijuana weekly to him; M.B. testified he supplied peers and Kelso to whom he sold.
- Kelso argued Hanover County was an improper venue because the sale occurred in Henrico; trial court and Court of Appeals upheld venue in Hanover.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hanover venue was proper for 18.2-255(A)(ii). | Kelso contends no Hanover act; offense location in Henrico. | Commonwealth asserts venue aligns with where juvenile assisted distribution. | Venue proper in Hanover; acts of juvenile distribution in Hanover support venue. |
| Whether the crime's multiple-jurisdiction elements affect venue. | Venue should track where the distribution to third party occurred. | Venue may be proper where key act occurred, even if other acts were elsewhere. | Venue appropriate in Hanover for the juvenile's distribution act. |
| Preservation of the sufficiency/territorial-jurisdiction challenge. | Record silent on age issue affecting venue/sufficiency. | Waiver or preservation issues should allow review of venue/sufficiency. | Kelso waived these arguments; Rule 5:25 prevents review on this basis. |
Key Cases Cited
- Moreno v. Baskerville, 249 Va. 16 (1995) (discrete act venue when crime is a single act)
- Rhodes v. Commonwealth, 145 Va. 893 (1926) (venue for embezzlement not exclusive to consummation location)
- Gregory v. Commonwealth, 237 Va. 354 (1989) (venue where direct and immediate result occurred may govern)
- United States v. Blecker, 657 F.2d 629 (4th Cir. 1981) (locus delicti depends on nature and location of acts constituting crime)
- Gheorghiu v. Commonwealth, 280 Va. 678 (2010) (crime involving continuing-situs considerations; multiple acts in different places)
- Porter v. Commonwealth, 276 Va. 203 (2008) (territorial jurisdiction and venue defined; ends-of-justice notions)