Patrick Raymond Long v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
PATRICK RAYMOND LONG
MEMORANDUM OPINION * BY
v. Record No. 2031-95-4 JUDGE RICHARD S. BRAY
MARCH 25, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William L. Winston, Judge
Mark S. Thrash for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Patrick Raymond Long (defendant) was convicted in a bench
trial of embezzlement and forgery. On appeal, he contends that
the evidence was insufficient to establish the requisite venue in
the trial court for the forgery offense. We agree and reverse
the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. See id.
Forgery is "the fraudulent making of a false writing, which,
if genuine, would be apparently of legal efficacy." Muhammad v.
Commonwealth, 13 Va. App. 194, 196, 409 S.E.2d 818, 819 (1991)
(quoting Terry v. Commonwealth, 87 Va. 672, 674, 13 S.E. 104, 105
(1891)). A forgery prosecution may take place "in any county or
city where the writing was forged, or where the same was used or
passed, or attempted to be used or passed, or deposited or placed
with another person, firm, association, or corporation either for
collection or credit . . . ." Code § 19.2-245.1; see Code
§ 19.2-244. "[T]he burden is upon the Commonwealth to prove
venue by evidence which is either direct or circumstantial. Such
evidence must furnish the foundation for a 'strong presumption'
that the offense was committed within the jurisdiction of the
court." Pollard v. Commonwealth, 220 Va. 723, 725, 261 S.E.2d
328, 330 (1980) (citation omitted).
Here, the evidence established that defendant first obtained
the subject check, then blank, at Fred's Place, located in
Arlington County. He subsequently forged and "passed" the
instrument to his sister, Mary Jacobs, who negotiated it in
Alexandria. The evidence further proved that Jacobs frequented
Fred's Place, occasionally cashing checks at the business.
However, the record abandons to conjecture the actual situs of
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the forgery. See Pollard, 220 Va. at 726, 261 S.E.2d at 330
(evidence "wholly inadequate" to provide strong presumption of
venue when established only "that a City employee possessed
outside the City stolen City property which originally had been
assigned to a City vehicle").
Accordingly, we conclude that the trial court erroneously
concluded that the Commonwealth had established the requisite
venue in Arlington County and reverse the conviction. However,
because the "error did not stem from evidentiary insufficiency
with respect to [defendant's] guilt or innocence," we do not
dismiss the indictment, but remand for further proceedings
consistent with this opinion, if the Commonwealth be so advised.
Id. (citing Burks v. United States, 437 U.S. 1, 15 (1978)).
Reversed and remanded.
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