David Andrew Lawhorn v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
DAVID ANDREW LAWHORN
MEMORANDUM OPINION * BY
v. Record No. 2100-98-3 JUDGE RICHARD S. BRAY
OCTOBER 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
(William E. Bobbitt, Jr., Public Defender, on
brief), for appellant. Appellant submitting
on brief.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
David Andrew Lawhorn (defendant) was convicted in a bench
trial for possession of a firearm by a convicted felon, a
violation of Code § 18.2-308.2. On appeal, he challenges only the
sufficiency of the evidence to prove venue in Augusta County.
Finding no error, we affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
In reviewing sufficiency of the evidence, we consider the
record "in the light most favorable to the Commonwealth,"
"discard[ing] all evidence of the accused that conflicts with that
of the Commonwealth and regard[ing] as true all credible evidence
favorable to the Commonwealth and all fair inferences reasonably
deducible therefrom." Lea v. Commonwealth, 16 Va. App. 300, 303,
429 S.E.2d 477, 479 (1993). The credibility of the witnesses, the
weight accorded testimony, and the inferences drawn from proven
facts are matters to be determined by the fact finder. See Long
v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
The judgment of the trial court will not be disturbed unless
plainly wrong or unsupported by the evidence. See Code
§ 8.01-680.
Viewed accordingly, the instant record discloses that
Sergeant A.C. Powers of the Augusta County Sheriff's Department
secured a warrant to search defendant’s residence and automobile.
The warrant was supported by information provided by defendant's
estranged wife, Shelby Lawhorn, which pertained to a stolen "four
wheeler" and certain firearms. During the related search, Powers
discovered a 12-gauge shotgun in a bedroom of the home, a
9-millimeter pistol in the vehicle, and the four-wheeler "setting
[sic] right behind" "a couple of old sheds" "across from" the
residence. Powers testified that the house was located in
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Craigsville, Virginia, and that "the four wheeler was recovered in
the Craigsville, Augusta Springs area."
At the conclusion of the Commonwealth's case-in-chief,
defendant moved the court to strike the evidence on the firearm
charge, arguing that the record failed to establish that the
offense occurred in Augusta County. The court denied the motion,
taking "judicial notice," without objection, that "both Augusta
Springs and Craigsville are in . . . Augusta County."
Called as a defense witness, Shelby Lawhorn testified that
the couple acquired the residence by "deed of gift" in 1996 or
1997. However, in an effort to "get [defendant] in trouble," Mrs.
Lawhorn admitted informing Sergeant Powers that she had "inherited
some land in Craigsville" and had "heard through the grapevine
that there was some stolen property out there," specifically
mentioning a "four wheeler" and "the guns." She further testified
that "the house is in Rockbridge County" and related property
taxes were paid to that county, contrary to her prior statement to
Powers that the realty was situated in Augusta County.
Defendant also testified that the property was located in
Rockbridge County, but introduced neither the related deed nor tax
verification.
At the conclusion of all the evidence, defendant renewed his
motion to strike, again challenging the sufficiency of the
evidence to establish venue. In denying the motion, the court
commented that
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[t]he Commonwealth must produce evidence
sufficient to give rise to a strong
presumption that the offense was committed
within the jurisdiction of the Court and
what we have got here is the clear testimony
of Mr. Powers that the Rockbridge line is a
half a mile from where he was and we have
the testimony of the Lawhorn's [sic],
neither of whom are credible witnesses to
the effect that it is in Rockbridge County.
So this Court will find that it is a matter
of fact in this case that this house in
which this 12 gauge was found and the car in
which the 9 millimeter were found were both
located in Augusta County when they were
found by Deputy Powers.
Defendant was subsequently convicted for the subject offense and
initiated this appeal.
II.
Generally, "the prosecution of a criminal case shall be had
in the county or city in which the offense was committed." Code
§ 19.2-244. To establish venue, the Commonwealth must "produce
evidence sufficient to give rise to a 'strong presumption' that
the offense was committed within the jurisdiction of the court,
and this may be accomplished by either direct or circumstantial
evidence." Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d
599, 604 (1990) (citation omitted). "'The facts proved may be
aided by judicial notice of geographical facts that are matters
of common knowledge or shown by maps in common use.'"
Sutherland v. Commonwealth, 6 Va. App. 378, 381, 368 S.E.2d 295,
297 (1988) (citation omitted).
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Here, Sergeant Powers' testimony established that the
offending firearms were found in the constructive possession of
defendant on property located in Craigsville, Augusta County,
Virginia. Without objection, the trial court took judicial
notice that Craigsville is located in Augusta County and
expressly rejected testimony of both defendant and Mrs. Lawhorn
to the contrary. See Moore v. Commonwealth, 25 Va. App. 277,
289, 487 S.E.2d 864, 870 (1997). Thus, the evidence
sufficiently supported the finding of a strong presumption that
the offense was committed in Augusta County.
Accordingly, we affirm the conviction.
Affirmed.
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