Wanda Kaye Turner v. Commonwealth ( 1997 )


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  •                     COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Moon, Judges Willis and Elder
    Argued by Teleconference
    WANDA KAYE TURNER
    MEMORANDUM OPINION * BY
    v.   Record No. 2804-96-2               JUDGE JERE M. H. WILLIS, JR.
    OCTOBER 14, 1997
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF HANOVER COUNTY
    Richard H. C. Taylor, Judge
    J. Overton Harris (Campbell, Campbell,
    Herbert & Harris, on brief), for appellant.
    Daniel J. Munroe, Assistant Attorney General
    (Richard Cullen, Attorney General, on brief),
    for appellee.
    Wanda Kaye Turner contends (1) that the trial court
    erroneously denied her motion to strike the evidence, and (2)
    that the Commonwealth failed to prove venue.    Because venue was
    not proven, we reverse the conviction and dismiss the indictment.
    We view the evidence in the light most favorable to the
    Commonwealth, granting to it all reasonable inferences fairly
    deducible therefrom.   See Traverso v. Commonwealth, 
    6 Va. App. 172
    , 176, 
    366 S.E.2d 719
    , 721 (1988).
    Dr. Byrd operates his dental office in Hanover County.      From
    approximately July 5 until November 21, 1995, Turner was his
    primary employee.   Although she performed clerical duties for
    him, she was not authorized to use the business checkbook which
    *
    Pursuant to Code § 17-116.010 this opinion is not
    designated for publication.
    was located in an unlocked filing cabinet.
    In December 1995, upon examining his business bank
    statements, Dr. Byrd discovered various checks out of sequence
    and several checks missing.   He determined that three of the
    missing checks had been written for $625.29 each, payable to
    Turner.   Dr. Byrd recognized the handwriting as Turner's.   One
    check was dated Wednesday, November 8, 1995.    Dr. Byrd testified
    that he is not in his office on Wednesdays and that Turner was
    the only person in his office that day.
    The bank statements revealed that Dr. Byrd's Central
    Fidelity Bank business checking account was short the three
    forged checks, each in the amount of $625.29.   Central Fidelity
    Bank reimbursed him that amount.
    On March 19, 1996, a grand jury indicted Turner for grand
    larceny of "property and/or U.S. currency" belonging to Dr. Byrd.
    However, the indictment was amended and specifies that:
    Wanda Kaye Turner on or about June 1st
    through December 1st, in the year one
    thousand nine hundred and ninety-five, in the
    said County, and within the Jurisdiction of
    the said Circuit Court of the County of
    Hanover did unlawfully and feloniously take,
    steal and carry away U.S. currency from
    Central Fidelity Bank by cashing forged
    payroll checks having a value of $200 or more
    belonging to Eliott Bird [sic], D.D.S., with
    the intent to deprive the owner thereof
    permanently against the peace and dignity of
    the Commonwealth of Virginia.
    Turner contends that no evidence proved that the offense was
    committed within the trial court's jurisdiction.   The
    - 2 -
    Commonwealth argues that the checks used to effect the alleged
    larceny of Central Fidelity Bank were removed from Dr. Byrd's
    office in Hanover County which is within the jurisdiction of the
    trial court.   The Commonwealth cites Randall v. Commonwealth, 
    183 Va. 182
    , 
    31 S.E.2d 571
     (1944), for the proposition that:
    "The failure clearly to prove venue is
    usually due to inadvertence, flowing
    naturally from the familiarity of the court,
    counsel, witnesses and jurors with the
    locality of the crime; and appellate courts
    will generally and properly lay hold of and
    accept as sufficient any evidence in the
    case, direct or otherwise, from which the
    fact may be reasonably inferred."
    Id. at 187, 31 S.E.2d at 573 (citation omitted).
    Code § 19.2-244 provides, in pertinent part, that:    "Except
    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."    While "[t]he Commonwealth may prove venue by either
    direct or circumstantial evidence[,] . . . 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)
    (citation omitted).
    Turner was not indicted for stealing blank checks from Dr.
    Byrd or for forgery.   Rather, she was charged with larceny of
    U.S. currency from Central Fidelity Bank.   The record is devoid
    of any reference to the location of Central Fidelity Bank -- the
    alleged situs of the crime.   While sufficient evidence
    - 3 -
    establishes that Turner removed the blank checks in Hanover
    County, we cannot infer upon that finding alone that a
    subsequent, separate and distinct offense of larceny of money
    from Central Fidelity Bank likewise occurred in Hanover County.
    Lacking such proof, the Commonwealth failed to prove that the
    larceny occurred within the trial court's jurisdiction.
    The conviction is reversed, and the indictment is dismissed.
    Reversed and dismissed.
    - 4 -
    

Document Info

Docket Number: 2804962

Filed Date: 10/14/1997

Precedential Status: Non-Precedential

Modified Date: 10/30/2014