Bonner v. Commonwealth.

July 23, 2013:

The Virginia Court of Appeals, upon a rehearing en banc, overturned the decision of the Circuit Court for Brunswick County, to convict appellant for altering the serial number on a firearm pursuant to Virginia Code §18.2-311.1.  Appellant argued on appeal and upon rehearing that the Circuit Court of Brunswick County erred in denying his motion to strike the above charge due to improper venue.  The Virginia Court of Appeals agreed, reversing based on a failure by the Commonwealth to establish that the Circuit Court of Brunswick County was a proper venue for the trial of this particular offense.

            On October 29, 2009, appellant made a threatening phone call to Erica Seay.  Fearing for her life, Seay subsequently contacted the police.  They then set up a meeting between the woman and appellant in Brunswick County.  Before the meeting, appellant drove to the house of one Brian Wyatt, location unknown.  Appellant then drove Wyatt and Wyatt’s girlfriend, Diane Branzelle, to appellant’s home in Dinwiddie County, and then continued on to the designated meeting spot.  Upon appellant’s arrest, the police recovered a handgun with the serial number filed down.  The only information provided on the record regarding the weapon is testimony from Seay, stating that appellant had the gun at a previous time at his home.  She was unable to recall any details about the serial number.  Branzelle also testified that the gun was in the care on the night of the arrest, she had seen it in appellant’s father’s truck, and that the serial number was already filed down.  There is no indication as to the date or location of this previous sighting.

            Pursuant to the Common Law principles and the laws of the Commonwealth, a criminal action should be decided by a court in the locality where a crimes occurs, and where a jury may be drawn to resolve the issue.  The Commonwealth has the burden to establish venue in a criminal prosecution.  The evidence may be direct or circumstantial, and need only give rise to a strong presumption that the offense was committed in the stated jurisdiction.  Per Virginia Rule §19.2-244, venue will be proper where any element of the offense occurs.  Although the Virginia legislature has made exceptions for certain crimes, per Kelso v. Commonwealth[1], application of the statute relies on determination of where a crime is committed, which is straightforward for a discrete act.  The Court of Appeals held that the statutory language of §18.2-311.1 makes clear that the offense of filing down the serial number on a firearm is a discrete act.  As such, it must be tried in the venue where the act occurred.

            The Court of Appeals stated that the record is clear that appellant did not file down the serial number on the night of arrest.  Further, none of the testimony regarding the weapon indicated when or where that particular offense took place.  As such, there was insufficient evidence to sustain even the strong presumption standard used for establishing venue.  The Virginia Court of Appeals held the trial court in error and reversed, remanding back to the Circuit Court of Brunswick County for further proceedings consistent with the opinion.

[1]  Kelso v. Commonwealth, 282 Va. 134, 137, 710 S.E.2d 470, 472 (2011).

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