745 S.E.2d 162
Va. Ct. App.2013Background
- On Oct. 29, 2009 Bonner (Dinwiddie County resident) made threatening phone calls to E.S., who was in a Brunswick County residence; a meeting was arranged at the Circle D / Davis Truck Stop in Brunswick County.
- Bonner traveled from Dinwiddie to the Circle D with two companions; police arrested him in the Circle D parking lot and recovered a handgun whose serial number had been filed down.
- Trial testimony did not identify who altered the serial number, when it was altered, or where that alteration occurred; witnesses placed prior sightings of the gun at earlier times (one at Bonner’s Dinwiddie home) but could not fix location or date of the defacement.
- Bonner was convicted in the Circuit Court of Brunswick County under Va. Code § 18.2-311.1 (altering a firearm serial number); he appealed solelly on venue grounds for that charge.
- The Court of Appeals (en banc) reviewed whether the Commonwealth proved venue by evidence giving rise to a “strong presumption” that the alteration occurred in Brunswick County.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue for prosecution under Va. Code § 18.2-311.1 was proper in Brunswick County | Commonwealth: venue proper because Bonner possessed the altered gun in Brunswick and the harm/effect of defacement was felt there; the offense may be treated as continuing/transitory for venue purposes | Bonner: venue improper because the statute creates a discrete offense; Commonwealth failed to show where the discrete act of altering the serial number occurred | Court: offense is a discrete act, not continuing; Commonwealth did not establish a strong presumption alteration occurred in Brunswick; venue improper — conviction reversed and remanded for trial in proper venue if Commonwealth so advises |
Key Cases Cited
- Kelso v. Commonwealth, 282 Va. 134, 710 S.E.2d 470 (Va. 2011) (venue is proper where an element of the offense occurred; locus tied to where the direct and immediate result of an illegal act occurred when an element occurs there)
- Pollard v. Commonwealth, 220 Va. 723, 261 S.E.2d 328 (Va. 1980) (Commonwealth bears burden to establish venue)
- Cheng v. Commonwealth, 240 Va. 26, 393 S.E.2d 599 (Va. 1990) (venue need only give rise to a strong presumption that the offense occurred in the jurisdiction)
- Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (Va. Ct. App. 1996) (venue proper where the harm/results of the offense occurred when statute contemplates that location)
- Davis v. Commonwealth, 14 Va. App. 709, 419 S.E.2d 285 (Va. Ct. App. 1992) (venue may be proven by direct or circumstantial evidence sufficient to create a strong presumption)
- Gregory v. Commonwealth, 237 Va. 354, 377 S.E.2d 405 (Va. 1989) (a defendant may be charged where the evil/result occurred; context included a statute with specific venue provision)
- Thomas v. Commonwealth, 38 Va. App. 319, 563 S.E.2d 406 (Va. Ct. App. 2002) (continuing offenses may give rise to venue in multiple jurisdictions)
- Gheorghiu v. Commonwealth, 280 Va. 678, 701 S.E.2d 407 (Va. 2010) (larceny is a continuing offense for venue because asportation creates successive offenses)
- Midstate Horticultural Co. v. Hampshire Paper Co., 306 U.S. 161 (U.S. 1939) (definition of a continuing offense: a continuous unlawful act or series of acts operable across jurisdictions)