Larwan Badru Bonner v. Commonwealth of Virginia , 62 Va. App. 206 ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Petty, Beales, Alston,
PUBLISHED
McCullough, Huff and Chafin
Argued at Richmond, Virginia
LARWAN BADRU BONNER
OPINION BY
v. Record No. 0565-11-2 JUDGE ROBERT J. HUMPHREYS
JULY 23, 2013
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
Sam Campbell, Judge
Lawrence Anthony Drombetta, III (Charles C. Cosby, Jr., on brief),
for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,
II, Attorney General, on brief), for appellee.
Larwan Badru Bonner (“Bonner”) appeals his conviction in the Circuit Court of
Brunswick County (“trial court”) for altering the serial number of a firearm in violation of Code
§ 18.2-311.1.1 On appeal to a three-judge panel of this Court, Bonner argued that the trial “court
erred in denying [his] motion to strike the [Code] § 18.2-311.1 charge involving the absence of a
serial number due to improper venue.” A divided panel of this Court reversed the conviction
based on a failure by the Commonwealth to establish that the Circuit Court of Brunswick County
was a proper venue for his trial on this offense. Bonner v. Commonwealth, 61 Va. App. 247,
734 S.E.2d 692 (2012). The Commonwealth, by the Attorney General of Virginia, filed a
1
Bonner was also convicted of using threatening language over the phone in violation of
Code § 18.2-427 and possession of a firearm by a convicted felon in violation of Code
§ 18.2-308.2; however, those convictions are not before the Court in the instant appeal.
petition requesting a rehearing en banc. This Court granted the Commonwealth’s petition,
staying the execution of the judgment of the panel opinion. Bonner v. Commonwealth, 61
Va. App. 430, 737 S.E.2d 46 (2013). Upon further review, we find that the Commonwealth
failed to establish that venue for the trial of this offense was proper in Brunswick County, and so
we reverse the conviction of altering the serial number of a firearm and remand to the trial court
for further proceedings consistent with this opinion, if the Commonwealth be so advised.
I. Background
The facts relevant to this appeal are as follows. On October 29, 2009, Bonner made a
threatening phone call to Erica Seay (“Seay”). At the time, Seay was in a house that is located in
Brunswick County. Seay contacted the police and, together, they set up a meeting between Seay
and Bonner at the Circle D,2 which is also located in Brunswick County.
Meanwhile, Bonner met with Brian Wyatt (“Wyatt”) and Wyatt’s girlfriend, Diane
Branzelle (“Branzelle”), at Wyatt’s house.3 Together, they drove to Bonner’s house, which is
located in Dinwiddie County, and then to the Circle D where they waited to meet Seay. The
police arrived and arrested Bonner in the parking lot of the Circle D, and, incident to the arrest,
they recovered the handgun that is at issue in this case. At that time, the serial number of the
handgun had already been filed down.
The evidence related to the handgun in this record is scant. There was no testimony as to
who had filed down the serial number, when it was obliterated, or where the removal was done.
Instead, the record reveals only that Seay had seen Bonner with the handgun previously on
September 18 at his home in Dinwiddie. However, Seay was unable to state whether the
2
The record is replete with references to the Circle D and “Davis’s Truck Stop” or the
“Davis Truck Stop.” Apparently, “Davis’s Truck Stop” or the “Davis Truck Stop” replaced the
Circle D, but as it is clear that they are the same location, this opinion will reference the location
simply as the Circle D.
3
The record is silent as to the location of Wyatt’s house.
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handgun had the serial number removed at that point or not. Additionally, Branzelle testified
that she noticed the gun wedged between the passenger seat and the center console of the car
while they were waiting at the Circle D on the night of the arrest. Branzelle testified that she was
familiar with the gun, as she had seen it previously in Bonner’s father’s truck, and it did not have
a serial number on it at that point. However, the record before us does not establish the date on
which she had seen the gun previously, what jurisdiction she was in on that occasion, or who
owned the handgun.
II. Analysis
A basic principle of law is that a civil or criminal action should be decided by a court in
the locality where the civil dispute or criminal offense occurred and where a jury to resolve the
issue may be drawn. This bedrock common law principle is expressed in the concept of venue
and has long been recognized in Virginia. See Richardson v. Commonwealth, 80 Va. 124(1885).
In a criminal prosecution, it is the Commonwealth’s burden to establish venue. Pollard v.
Commonwealth, 220 Va. 723, 725, 261 S.E.2d 328, 330 (1980). “Proof of venue ‘is not a part of
the crime.’ Thus, the prosecution need not ‘prove where the crime occurred beyond a reasonable
doubt, since venue is not a substantive element of a crime.’” Morris v. Commonwealth, 51
Va. App. 459, 469, 658 S.E.2d 708, 712-13 (2008) (quoting Randall v. Commonwealth, 183 Va.
182, 187, 31 S.E.2d 571, 573 (1944); United States v. Griley, 814 F.2d 967, 973 (4th Cir. 1987)).
Instead, to establish venue the Commonwealth need only “produce evidence sufficient to give
rise to a ‘strong presumption’ that the offense was committed within the jurisdiction of the
court.” Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990). “The
Commonwealth may prove venue by either direct or circumstantial evidence. In either case, the
evidence must be sufficient to present a ‘strong presumption that the offense was committed
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within the jurisdiction of the Court.’” Davis v. Commonwealth, 14 Va. App. 709, 711, 419
S.E.2d 285, 287 (1992) (quoting Pollard, 220 Va. at 725, 261 S.E.2d at 330).
On appeal, an appellate court’s responsibility when reviewing an issue of venue is “to
determine ‘whether the evidence, when viewed in the light most favorable to the
Commonwealth, is sufficient to support the [trial court’s] venue findings.’” Foster-Zahid v.
Commonwealth, 23 Va. App. 430, 442, 477 S.E.2d 759, 765 (1996) (quoting Cheng, 240 Va. at
36, 393 S.E.2d at 604). Furthermore, “[w]e consider whether the Commonwealth proved venue
when viewing the evidence ‘in the light most favorable to the Commonwealth.’” Taylor v.
Commonwealth, 58 Va. App. 185, 190, 708 S.E.2d 241, 243 (2011) (quoting Cheng, 240 Va. at
36, 393 S.E.2d at 604).
Before we can determine whether the Commonwealth met its burden in establishing a
strong presumption that the offense was committed in the jurisdiction of the trial court, we must
establish in the abstract where a proper venue is for the offense of altering the serial number of a
firearm. Generally, the General Assembly has provided that venue in the Commonwealth “shall
be had in the county or city in which the offense was committed.” Code § 19.2-244. In other
words, venue for a criminal prosecution will generally be proper wherever any element of the
offense occurs. However, for certain specific offenses, the legislature has seen fit to allow for
venue in other jurisdictions in which it may not ordinarily lie. See e.g. Code §§ 18.2-83,
18.2-115, 18.2-118, 18.2-178, 18.2-186, 18.2-326, 18.2-359, 18.2-362. In the absence of such a
provision, Code § 19.2-244 dictates the proper venue for an offense. Such is the case here.
“Application of this statute requires a determination of where a specific crime was ‘committed.’
This determination is straightforward when the crime is a discrete act.” Kelso v.
Commonwealth, 282 Va. 134, 137, 710 S.E.2d 470, 472 (2011). However, when a crime
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constitutes a continuing offense, venue may be proper in more than one jurisdiction. See
Thomas v. Commonwealth, 38 Va. App. 319, 324, 563 S.E.2d 406, 409 (2002).
“A continuing offense is a continuous, unlawful act or series of
acts set on foot by a single impulse and operated by an
unintermittent force, however long a time it may occupy. Where
such an act or series of acts runs through several jurisdictions, the
offense is committed and cognizable in each.”
Id. (quoting United States v. Midstate Horticultural Company, 306 U.S. 161, 166 (1939)).
The offense of altering the serial number of a firearm is set forth under Code
§ 18.2-311.1, which states that
[a]ny person, . . . who . . . intentionally removes, defaces, alters,
changes, destroys or obliterates in any manner or way or who . . .
causes to be removed, defaced, altered, changed, destroyed or
obliterated in any manner or way the name of the . . . or serial
number . . . on any pistol . . . shall be guilty of a Class 1
misdemeanor.
By the plain language of the statute, it is clear that this offense constitutes a discrete act. The
statute requires only that a person intentionally remove, deface, alter, change, destroy, or
obliterate the serial number of the pistol in order for the elements of the offense to be completed.
Once any of these goals has been achieved, the crime is complete. In other words, the statute
does not contain “‘a continuous, unlawful act or series of acts set on foot by a single impulse and
operated by an unintermittent force.’” Thomas, 38 Va. App. at 324, 563 S.E.2d at 409 (quoting
Midstate Horticultural Company, 306 U.S. at 166).
In contrast, courts in the Commonwealth have consistently held that larceny is a
continuing offense. See Gheorghiu v. Commonwealth, 280 Va. 678, 685, 701 S.E.2d 407, 411
(2010). This is “based on the common law legal fiction that each time the stolen goods are taken
into a new jurisdiction, there is an illegal asportation and a new crime is committed.” Id. Thus,
in prosecutions for the offense of larceny, venue is proper in any jurisdiction in which the stolen
goods are taken because one of the required elements of larceny, the asportation of the stolen
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property from its original location, is ongoing. Likewise, conspiracy constitutes a continuing
offense, and therefore “venue is proper in any city or county where an act in furtherance of the
conspiracy took place, as well as the place where the conspiracy was entered into.” Brown v.
Commonwealth, 10 Va. App. 73, 80-81, 390 S.E.2d 386, 390 (1990). However, altering the
serial number of a firearm is not analogous to these offenses. There is no element of this offense
involving conduct that is ongoing in nature or conduct that in and of itself constitutes a new
offense.
Even so, the Commonwealth argues that, “depending on the nature of a particular crime,
there may be a distinction between the locus of criminal conduct and where its effect occurs. For
purposes of venue, these offenses can be considered ‘continuing’ or ‘transitory.’” As in the case
of altering the serial number of a firearm, the Commonwealth reasons that the effect of the crime
would be felt anywhere the firearm is located, as the harm the statute intends to prevent is the
inability to trace the firearm. In support of this argument, the Commonwealth cites to Kelso, in
which the Supreme Court recognized “venue is proper in the jurisdiction where the direct and
immediate result of an illegal act occurred, even if the illegal act causing the injury occurred in
another jurisdiction,” Kelso, 282 Va. at 138, 710 S.E.2d at 473, and to Gregory v.
Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), in which this Court reasoned that “[i]t
has long been a commonplace of criminal liability that a person may be charged in the place
where the evil results, though he is beyond the jurisdiction when he starts the train of events of
which the evil is the fruit.” Id. at 94, 360 S.E.2d at 861.
However, the Supreme Court in Kelso did not expand the scope of venue in the manner
suggested by the Commonwealth. The Attorney General’s argument ignores the context of the
holding in which those statements were made. In Kelso, the charge was causing a juvenile to
assist in the distribution of marijuana in violation of Code § 18.2-255(A)(ii). As the Supreme
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Court noted, “one of the acts which must occur for conviction is distribution of the contraband
by the juvenile to a third party. Under these circumstances, the place where that act occurred is
an appropriate venue for prosecution.” Kelso, 282 Va. at 138, 710 S.E.2d at 473. Thus, under
the holding in Kelso, venue is proper where one of the elements of the offense occurred.
Similarly, the offense charged in Gregory was one of those discussed above that involved an
offense for which the General Assembly specifically provided for venue in a place other than
where venue would ordinarily lie.4
Indeed, the Commonwealth’s argument that venue lies wherever some evil traceable to a
crime occurs, if followed to its logical conclusion would result in the complete frustration of the
general venue statute. Therefore, it is apparent that the General Assembly clearly does not share
the Attorney General’s interpretation of existing law. Under the Commonwealth’s theory, there
would be no need for the legislature to include special venue statutes in the offenses that
currently include such provisions. The offense of making threats to bomb a building under Code
§ 18.2-83 is illustrative. This statute criminalizes “[a]ny person . . . who makes and
communicates to another by any means any threat to bomb, burn, destroy or in any manner
damage any place of assembly, building or other structure, or any means of transportation.”
Code § 18.2-83(A). The statute goes on to state that “[a] violation of this section may be
prosecuted either in the jurisdiction from which the communication was made or in the
jurisdiction where the communication was received.” Code § 18.2-83(B). This offense, like the
alteration of a firearm, is a discrete act. However, the effect of the act is clearly felt where the
threat is received. Thus, under the Commonwealth’s theory, there would be no need for the
4
A more accurate construction of Kelso and Gregory, is that the “evil” caused by the
criminal actions in those cases occurred where either an element of the offense occurred or
where the General Assembly made specific provision for venue to exist. The record in this case
supports neither situation.
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legislature to specifically provide that the offense may be prosecuted where the threat was
received. However, that is exactly what the legislature saw fit to do.
Having concluded that Code § 18.2-311.1 is a discrete rather than a continuing offense,
we now turn to the issue of whether venue was proper in this case. That is, based on the
evidence in the record before us, did the trial court err in finding that the Commonwealth
established a strong presumption that the removal, defacement, alteration, change, destruction or
obliteration of the serial number occurred in Brunswick County. In this case, we hold that it did.
It is clear from the record that Bonner did not file down the serial number while he was
waiting at the Circle D in Brunswick County on the night in question. Both Seay and Branzelle
testified that they had seen Bonner with the gun on different occasions prior to the night of his
arrest. Seay was able to place the gun with Bonner at his residence in Dinwiddie County prior to
the evening in question, and Branzelle testified that the handgun’s serial number had already
been removed prior to the arrest, although the date and location of that occurrence are not part of
the record. However, there was no testimony that Bonner was the one who filed down the serial
number, let alone where that discrete act occurred. While the Commonwealth need only prove a
strong presumption of venue, as opposed to the much more stringent “beyond a reasonable doubt
standard” necessary for conviction, there is still insufficient evidence in the record to sustain
even this standard.5 Therefore, we find that the trial court erred in finding that the
Commonwealth established that venue for the trial of this offense was proper in Brunswick
County.
The Commonwealth argues that this is an absurd result and points to our oft-cited canon
of statutory construction that “‘the plain, obvious, and rational meaning of a statute is to be
5
We reiterate that the only issue on appeal relates to the finding of venue, and not to the
sufficiency of the evidence for the conviction of altering the serial number of a firearm itself.
-8-
preferred over any curious, narrow, or strained construction, and a statute should never be
construed in a way that leads to absurd results.’” Davis v. County of Fairfax, 282 Va. 23, 28,
710 S.E.2d 466, 468 (2011) (quoting Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d
637, 639 (2007)). Our interpretation of the venue statute is based on its plain language. While
this may create difficulty in some cases in establishing venue for this offense, difficulty is not
absurdity. The legislature could have easily created a special venue provision for this offense
establishing venue wherever the firearm is located, or simply criminalized the possession of a
firearm that has an altered serial number. However, that is not what the legislature has done, and
thus, our holding is faithful to the canon of statutory construction cited by the Commonwealth.
III. Conclusion
For aforementioned reasons, we hold today that the trial court erred in finding venue
proper for Bonner’s charge of altering the serial number of a firearm. Therefore, we reverse
Bonner’s conviction of that offense, and remand the case to the trial court for further
proceedings, including trial in a proper venue if the Commonwealth be so advised.6
Reversed and remanded.
6
“Where venue was improper, this Court should remand the case for a new trial in an
appropriate venue.” Taylor, 58 Va. App. at 193, 708 S.E.2d at 245.
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VIRGINIA:
In the Court of Appeals of Virginia on Tuesday the 5th day of February, 2013.
PUBLISHED
Larwan Badru Bonner, Appellant,
against Record No. 0565-11-2
Circuit Court Nos. CR10000148-00 through CR10000148-02
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Petty, Beales, Alston, McCullough,
Huff and Chafin
On December 21, 2012 came the appellee, by the Attorney General of Virginia, and filed a petition
requesting that the Court set aside the judgment rendered herein on December 11, 2012, and grant a rehearing
en banc on the issue raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue raised
therein, the mandate entered herein on December 11, 2012 is stayed pending the decision of the Court en
banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix
previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies
of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of
this Court. The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe
Acrobat Portable Document Format (PDF).1
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
1
The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”
-2-
COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Huff
PUBLISHED
Argued at Richmond, Virginia
LARWAN BADRU BONNER
OPINION BY
v. Record No. 0565-11-2 JUDGE ROBERT J. HUMPHREYS
DECEMBER 11, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
Sam Campbell, Judge
Charles C. Cosby, Jr., for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II,
Attorney General, on brief), for appellee.
Larwan Badru Bonner (“Bonner”) was convicted in the Circuit Court of Brunswick
County (“trial court”) for altering the serial number of a firearm in violation of Code
§ 18.2-311.1, using threatening language over the phone in violation of Code § 18.2-427, and
possession of a firearm by a convicted felon in violation of Code § 18.2-308.2.1 On appeal, he
contends that the trial “court erred in denying [his] motion to strike the [Code] § 18.2-311.1
charge involving the absence of a serial number due to improper venue.” Because we find that
the Commonwealth did not properly establish venue for this charge, we reverse the conviction,
and remand the case for a new trial in a proper venue if the Commonwealth is so advised.
I. Background
On October 29, 2009, Bonner, a resident of Dinwiddie County, called E.S. and demanded
that she repay him $70 that he had paid for dinner the night before. During the phone call,
1
This appeal only involves a challenge to the conviction under Code § 18.2-311.1 for
altering the serial number of a firearm. The remaining convictions for violating Code
§§ 18.2-308.2 and -427 are not before this Court.
Bonner was loud and angry, and he threatened to “‘F’ [E.S.] and everybody else in the house
up.” At the time of the call, E.S. was in a house in Brunswick County with her three children,
the father of her children, and his mother, father, and grandmother. After the call ended, E.S.
contacted the police, and together, they set up a meeting between E.S. and Bonner at the Davis
Truck Stop in Brunswick County.
Meanwhile, Bonner met Brian Wyatt (“Wyatt”) and his girlfriend, Diane Branzelle
(“Branzelle”), at Wyatt’s house.2 Together, the three of them drove to Bonner’s house in
Dinwiddie County and then to the Davis Truck Stop. Bonner informed Branzelle and Wyatt that
they needed to wait at the Davis Truck Stop, because he was going to pick up some money from
the father of E.S.’s children. While they were waiting, Branzelle leaned forward and noticed that
Bonner had his arm rested on a handgun that was wedged between his seat and the center
console of the car.
Eventually, the police arrived at the Davis Truck Stop and arrested Bonner. Incident to
the arrest, they recovered the handgun from the vehicle. The police observed that the serial
number of the gun was filed down and rendered unreadable.
There was no testimony as to how or where the serial number had been filed down.
Instead, the only testimony at trial regarding the gun was that E.S. had seen Bonner with the gun
on September 18 at his home in Dinwiddie. However, she was unsure whether the serial number
had been removed from the gun at that point. Additionally, Branzelle testified that she had seen
the gun on a different occasion, which was prior to October 29, 2009, and it did not have a serial
number on it at that point. Branzelle did not testify as to the location of that instance.
At trial, Bonner moved to strike the charge of altering the serial number of a firearm,
arguing that the Commonwealth had not met its burden in establishing that venue for the charge
2
The record is silent as to the location of Wyatt’s house.
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was proper in Brunswick County. The trial court denied his motion to strike, and subsequently
found him guilty of the offense. Bonner then noted this appeal.
II. Analysis
When an appeal involves an issue of venue, we review the record “to determine ‘whether
the evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to
support the [trial court’s] venue findings.’” Foster-Zahid v. Commonwealth, 23 Va. App. 430,
442, 477 S.E.2d 759, 765 (1996) (quoting Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d
599, 604 (1990)). In a criminal prosecution, it is the Commonwealth’s burden to establish
venue. Pollard v. Commonwealth, 220 Va. 723, 725, 261 S.E.2d 328, 330 (1980). “The
Commonwealth may prove venue by either direct or circumstantial evidence. In either case, the
evidence must be sufficient to present a ‘strong presumption that the offense was committed
within the jurisdiction of the Court.’” Davis v. Commonwealth, 14 Va. App. 709, 711, 419
S.E.2d 285, 287 (1992) (quoting Pollard, 220 Va. at 725, 261 S.E.2d at 330).
While the General Assembly has created specific venue provisions for some offenses, see
e.g. Code §§ 18.2-115, 18.2-118, 18.2-178, 18.2-186, 18.2-326, altering the serial number of a
firearm under Code § 18.2-311.1 is not one of them. Therefore we must look to Code
§ 19.2-244, the general venue statute in the Commonwealth, for the venue requirements
applicable to the offense involved in this case. Code § 19.2-244 states in relevant part “[e]xcept
as otherwise provided by law, the prosecution of a criminal case shall be had in the county or
city in which the offense was committed.” “Application of this statute requires a determination
of where a specific crime was ‘committed.’ This determination is straightforward when the
crime is a discrete act.” Kelso v. Commonwealth, 282 Va. 134, 137, 710 S.E.2d 470, 472
(2011).
-3-
In other words, venue for prosecution ordinarily lies where one or more elements of the
offense charged took place. Furthermore, when a crime constitutes a continuing offense, venue
may be proper in more than one jurisdiction. See Thomas v. Commonwealth, 38 Va. App. 319,
324, 563 S.E.2d 406, 409 (2002).
“A continuing offense is a continuous, unlawful act or series of
acts set on foot by a single impulse and operated by an
unintermittent force, however long a time it may occupy. Where
such an act or series of acts runs through several jurisdictions, the
offense is committed and cognizable in each.”
Id. (quoting United States v. Midstate Horticultural Company, 306 U.S. 161, 166 (1939)).
Larceny, for example, is a continuing offense, and thus, venue is proper for any jurisdiction in
which the thief transports or possesses the stolen goods. Doane v. Commonwealth, 218 Va. 500,
502, 237 S.E.2d 797, 798 (1977); see also Gheorghiu v. Commonwealth, 280 Va. 678, 685, 701
S.E.2d 407, 411 (2010) (“We have identified larceny as a continuing offense for venue purposes
based on the common law legal fiction that each time the stolen goods are taken into a new
jurisdiction, there is an illegal asportation and a new crime is committed, thereby allowing
prosecution for the larceny in any jurisdiction to which the goods were taken.”).
While not conceding the point, the Commonwealth argues that even if the record is silent
as to the specific location where the serial number on the weapon was defaced, nevertheless
venue was proper in Brunswick County because a violation of Code § 18.2-311.1 constitutes a
continuing offense and the record is clear that Bonner possessed the weapon in that county. The
Commonwealth’s argument, in essence, is that, since the alteration of a serial number allows the
possessor of the weapon potentially to use the weapon in committing other crimes without fear
of the weapon being traced back to him, the offense is continuing in nature. We disagree. Code
§ 18.2-311.1 states, in relevant part, that
[a]ny person, . . . who . . . intentionally removes, defaces, alters,
changes, destroys or obliterates in any manner or way or who . . .
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causes to be removed, defaced, altered, changed, destroyed or
obliterated in any manner or way the name of the . . . serial number
. . . on any pistol . . . shall be guilty of a Class 1 misdemeanor.
Unlike the asportation element of larceny, there is no element of Code § 18.2-311.1 that
is ongoing in nature such as to permit a similar legal fiction that a new offense has occurred in
every jurisdiction in which the weapon is possessed. Under the plain language of the statute, the
offense is complete once the person tampers with the serial number of the firearm in the manner
or to the extent proscribed by the statute. Thus, the offense constitutes a discrete act rather than a
continuing offense.
The Commonwealth argues that this construction of the venue requirements for Code
§ 18.2-311.1 will make prosecution more difficult when the location of alteration is unknown.
Whatever the policy merits of the Commonwealth’s argument, it is best addressed by the General
Assembly. This Court must follow the plain meaning of the statute and may not rewrite it.
“The duty of this court is not to make law, but to construe it; not to
wrest its letter from its plain meaning in order to conform to what
is conceived to be its spirit, in order to subserve and promote some
principle of justice and equality which it is claimed the letter of the
law has violated. It is our duty to take the words which the
legislature has seen fit to employ and give to them their usual and
ordinary signification, and having thus ascertained the legislative
intent, to give effect to it, unless it transcends the legislative power
as limited by the Constitution.”
Temple v. Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 359 (1944) (quoting Commonwealth v.
Sanderson, 170 Va. 33, 38-39, 195 S.E. 516, 519 (1938)).
Since Code § 18.2-311.1 does not constitute a continuing offense, we now turn to the
issue of whether the trial court erred in finding the Commonwealth met its burden in establishing
a strong presumption that the offense was committed in Brunswick County. The record indicates
that both E.S. and Branzelle had seen Bonner with the gun on different occasions prior to the
night he was arrested. E.S. testified that at that previous occasion, Bonner had the gun with him
-5-
at his house in Dinwiddie County. Branzelle, on the other hand, did not indicate the jurisdiction
in which she had previously seen the gun, but she testified that the serial number had already
been removed. On the night of his arrest, Bonner drove with Branzelle and Wyatt from Wyatt’s
house to Bonner’s house in Dinwiddie County before proceeding to the Davis Truck Stop in
Brunswick County. There was no testimony that Bonner altered the serial number in any manner
during that trip; rather, Branzelle testified only that she noticed the gun when she leaned forward
and saw the gun wedged between the seat and console. Combined with Branzelle’s other
testimony, it is clear that Bonner had altered the serial number prior to the trip. As Bonner lives
in Dinwiddie County, and the record only indicates that he entered Brunswick County in order to
confront E.S., there is no evidence whatsoever in the record before us that Bonner removed the
serial number of the gun in Brunswick County.
The dissent concedes that the serial number may have been altered outside of Brunswick
County, but nevertheless reaches the conclusion that venue is proper in this case because “the
direct and immediate impact of the offense occurred in Brunswick” County. We reject this
theory because if we were to accept this principle as broadly as the dissent does, the general
venue statute found in Code § 19.2-244 would be unnecessary. Carried to its logical conclusion,
the test for venue for any criminal offense would be proper in any jurisdiction regardless of
where the elements of the offense were actually committed so long as one can point to some
“direct and immediate impact” of the offense in that jurisdiction.
In support of its position, the dissent relies primarily upon two cases: Gregory v.
Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff’d, 237 Va. 354, 377 S.E.2d 405(1989), and Foster-Zahid, 23 Va. App. 430, 477 S.E.2d 759. However, these cases are easily
distinguishable from, and inapplicable to, this case. In Gregory, the appellant was convicted of
unlawfully and feloniously removing a tractor and trailer from the state upon which there was a
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lien and disposing of it without the written consent of the lienor in violation of Code § 18.2-115.
That statute included a specific provision for venue. Specifically, “Code § 18.2-115 . . .
provide[d] that: ‘[t]he venue of prosecutions against persons fraudulently removing any such
property, including motor vehicles, from the State shall be the county or city in which such
property or motor vehicle was purchased or in which the accused last had a legal residence.’”
Gregory, 5 Va. App. at 92, 360 S.E.2d at 860 (quoting Code § 18.2-115). As the appellant’s last
legal residence was in the jurisdiction where the charge was instituted, this Court found that
venue was proper and the Supreme Court affirmed that decision. Gregory, 237 Va. 354, 377
S.E.2d 405.
The dissent focuses on part of our reasoning from that case: “‘[i]t has long been a
commonplace of criminal liability that a person may be charged in the place where the evil
results, though he is beyond the jurisdiction when he starts the train of events of which the evil is
the fruit.’” Gregory, 5 Va. App. at 94, 360 S.E.2d at 861 (quoting Travelers Health Assoc. v.
Commonwealth, 188 Va. 877, 892, 51 S.E.2d 263, 269 (1949)). However, the dissent fails to
consider that this offense involved a crime where elements of the offense occurred outside of the
state and the statute specifically provided that venue existed in a location other than where the
crime occurred.3 “‘[I]n the absence of a constitutional limitation, it is generally held that the
Legislature has power to fix the venue of criminal prosecutions in a county or district other than
that in which the crime was committed.’” Foster-Zahid, 23 Va. App. at 442, 477 S.E.2d at 765(quoting Howell v. Commonwealth, 187 Va. 34, 40-41, 46 S.E.2d 37, 40 (1948)). As already
3
The General Assembly can certainly authorize prosecution of an offense that occurs in
part outside of the Commonwealth’s territorial borders when its effects are felt within the
Commonwealth. Such authority is inherent in a state’s sovereign power. However, this is a
wholly different issue than venue, which is simply the concept of the legally proper place where
a particular case should be filed and disposed of.
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noted, the legislature included no specific venue provision applicable to Code § 18.2-311.1,
therefore the holding of Gregory is inapplicable to this case.
In Foster-Zahid, the appellant was convicted of custodial interference in violation of
Code § 18.2-49.1(A). That statute criminalizes the withholding of the child from the custodial
parent, and thus, the offense is necessarily committed where the custodial parent resides.
Therefore, in Foster-Zahid we held “[u]nder Code § 18.2-49.1(A), the General Assembly clearly
provided that venue exists where the crime of custodial interference occurred, i.e., where the
harm resulted as a direct and immediate consequence of the violation of the court order.” Id. As
a result, we held that venue was proper where the custodial parent resided since that is the
location at which the child was withheld from the custodial parent. Code § 18.2-311.1 is
distinguishable from Code § 18.2-49.1(A) in that in this case, the crime, and thus the harm, is
complete when and where the serial number of the firearm has been altered. At that point, any
attempt to identify the firearm by its serial number has been impeded. Thus, Foster-Zahid does
not control our holding today. While the dissent is certainly correct that a firearm with an altered
or defaced serial number may be used to commit other offenses that themselves result in direct
and immediate consequences in other jurisdictions throughout the Commonwealth, the
legislative scheme currently contemplates that each charged offense is subject to an
individualized determination of venue.
III. Conclusion
For the reasons stated, we hold that the trial court erred in concluding that the evidence
was sufficient to establish that venue was proper in Brunswick County. We therefore reverse
Bonner’s conviction for altering the serial number of a firearm in violation of Code § 18.2-311.1
and remand this case to the trial court for further proceedings including a new trial in a circuit
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court with geographical jurisdiction over the trial of this offense if the Commonwealth be so
advised.
Reversed and remanded.
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Frank, J., dissenting.
I respectfully dissent and believe venue was proper in Brunswick County.
Application of Code § 19.2-244 requires a determination of where a specific crime was
“committed.” This determination is straightforward when the crime is a discrete act. For
example, rape is a discrete act which when completed constitutes the commission of the crime.
However, a crime committed in one jurisdiction may have a direct and immediate result
in another jurisdiction. Gregory v. Commonwealth, 237 Va. 354, 355, 377 S.E.2d 405, 406
(1989); see also United States v. Blecker, 657 F.2d 629, 632 (4th Cir. 1981) (explaining that
when a statute defining a substantive offense does not indicate where the place of committing the
crime is to be, the locus delicti must be determined from the nature of the crime alleged and the
location of the act or acts constituting it).
In Gregory v. Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff’d, 237 Va. 354,
377 S.E.2d 405 (1989), Gregory obtained a loan from a bank, which was secured by a lien on his
tractor trailer. The loan agreement prohibited Gregory from selling the vehicle without the
bank’s consent. Gregory sold the trailer in another state after it broke down. He was charged
with fraudulently selling the vehicle pursuant to Code § 18.2-115 and tried for the offense in
Botetourt County, Virginia. Id. at 91, 360 S.E.2d at 859.
Gregory argued the offense was completed outside of the Commonwealth. We held the
evil that Code § 18.2-115 sought to prevent, i.e., the economic injury to the lienholder by
removing the secured property from the Commonwealth and thus preventing the lienholder from
enforcing the lien, occurred in Botetourt County. Id. at 94, 360 S.E.2d at 861. ‘“It has been a
commonplace of criminal liability that a person may be charged in the place where the evil
results, though he is beyond the jurisdiction when he starts the train of events of which the evil is
the fruit.”’ Id. (quoting Travelers Health Assoc. v. Commonwealth, 188 Va. 877, 892, 51 S.E.2d
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263, 269 (1949)). “Where harm is caused in Virginia by criminal acts partially committed within
this Commonwealth, such acts can be prosecuted here.” Id.The majority attempts to distinguish Gregory. We agree that Code § 18.2-115 provides
that venue “shall be the county or city in which said property or motor vehicle was purchased or
in which the accused last had a legal residence.” However, I find Gregory persuasive. The
statutory venue language and the Gregory opinion underscore the concept that “a person may be
charged in the place where evil results.” 5 Va. App. at 94, 360 S.E.2d at 861.
Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (1996), is also
instructive. The mother, pursuant to a custody/visitation order of the Fairfax Juvenile and
Domestic Relations District Court, had visitation with her son in Wisconsin. Id. at 434, 477
S.E.2d at 761. She failed to return the child as agreed, and ultimately absconded with him to
California. Appellant was charged with parental abduction and tried in Fairfax. Id. at 435, 477
S.E.2d at 761.
The issue was whether Fairfax was the proper venue. We held that it was.
The gravamen of the offense is the withholding of the child from
the custodial parent outside the Commonwealth. The clear intent
of the statute is to punish more severely those who withhold a child
from its rightful custodian when the detention is accomplished
outside of Virginia, thereby further restricting the custodial
parent’s ability to retrieve the child.
Id. at 437, 477 S.E.2d at 762 (emphasis omitted). Citing Gregory, we held that appellant’s
failure to return the child to the custodial parent in Fairfax produced the harm the statute
intended to prevent. Id. at 440, 477 S.E.2d at 764.
It is interesting to note in Foster-Zahid, we cited Gregory to support the conclusion that
the evil occurred in the Commonwealth by “further restricting the custodial parent’s ability to
retrieve the child.” Foster-Zahid, 23 Va. App. at 437, 477 S.E.2d at 762. If the Gregory decision
was limited to the statutory venue language, as the majority suggests, Gregory would have no
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bearing on Foster-Zahid. Again, the majority seeks to distinguish Foster-Zahid as it must. The
majority contends that Code § 18.2-311.1 is distinguishable from Code § 18.2-49.1(A)4 in that
the harm, and thus the crime, is complete once the serial number of the firearm had been altered.
I disagree. The fact that the crime has been completed is not relevant to an analysis of where the
evil occurred. In Gregory, the offense was complete when the perpetrator sold the trailer in
another state. In Foster-Zahid, the offense was complete when the defendant withheld the child
out of state.
I find the purpose behind prohibiting the alteration or obliteration of a serial number on a
weapon instructive. A serial number identifies the weapon. By obscuring that number, one
obscures the identification of the weapon and the owner. The number serves law enforcement
interest by enabling them to trace and identify the owner and source.
As the United States Court of Appeals found in United States v. Marzzarella, 614 F.3d 85(3d Cir. 2010):
Firearms without serial numbers are of particular value to those
engaged in illicit activity because the absence of serial numbers
helps shield recovered firearms and their possessors from
identification. Their prevalence, therefore, makes it more difficult
for law enforcement to gather information on firearms recovered in
crimes. Accordingly, preserving the ability of law enforcement to
conduct serial number tracing – effectuated by limiting the
availability of untraceable firearms – constitutes a substantial or
important interest.
Id. at 98 (citation omitted).
4
Code § 18.2-49.1(A) provides:
Any person who knowingly, wrongfully and intentionally
withholds a child from either of a child’s parents or other legal
guardian in a clear and significant violation of a court order
respecting the custody or visitation of such child, provided such
child is withheld outside of the Commonwealth, is guilty of a Class
6 felony.
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Here, appellant telephoned E.S. threatening to “F--- [her] up” and telling her that
everyone in her house was “going to be in a body bag.” Appellant had fired a gun within the last
month in E.S.’s presence, and she was afraid he would keep his deadly threat. Appellant
believed E.S. would meet him at the gas station, and he armed himself with a weapon with the
serial number removed.
Appellant had threatened to commit murder. By eliminating the serial number, appellant
effectively hampered any ensuing police investigation. Further, appellant is a convicted felon
and his possession of a weapon is a separate felony offense. By removing the serial number,
appellant made it more difficult for the weapon to be traced to him. See Marzzarella, 614 F.3d at
98 (discussing the substantial law enforcement interest in enabling weapons tracing via serial
numbers). While obliteration of the serial number may have occurred outside of Brunswick, the
evil Code § 18.2-311.1 sought to prevent occurred in Brunswick because several gun-related
offenses occurred there necessitating an investigation in that county. Thus, the direct and
immediate impact of the offense occurred in Brunswick and the trial court correctly found venue
was proper in that county.
I would conclude there was sufficient evidence to give rise to a “strong presumption” that
venue was proper in Brunswick County and would affirm the judgment of the trial court.
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