Thomas v. Commonwealth

                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia


RICARDO LLOYD THOMAS
                                               OPINION BY
v.   Record No. 0592-01-4       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              MAY 21, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                  Benjamin N. A. Kendrick, Judge

          Garland L. Stith, Jr., for appellant.

          Kathleen B. Martin, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on brief),
          for appellee.


     Ricardo Lloyd Thomas (appellant) was convicted in a jury

trial of felony eluding a law enforcement officer resulting in

serious injury to another in violation of Code § 46.2-817.    On

appeal, he contends the trial court erred in finding the

evidence sufficient to establish venue in Arlington County.   We

agree and reverse and remand for retrial in Fairfax County if

the Commonwealth chooses. 1


     1
      Appellant raises two additional assignments of error. He
contends that the trial court erred by refusing to allow him to
present evidence to the jury that the proper venue was Fairfax
County. Because of our holding, this issue is moot.
Additionally, he contends that the evidence was insufficient to
prove that the victim sustained serious bodily injury. However,
appellant presented no argument, authority or citations to the
record to support this assertion. Thus, we do not consider it.
See Rule 5A:20; Buchanan v. Buchanan, 14 Va. App. 53, 56, 415
S.E.2d 237, 239 (1992).
                                 I.

     Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences

fairly deducible therefrom.   See Juares v. Commonwealth, 26 Va.

App. 154, 156, 493 S.E.2d 677, 678 (1997).

     The facts of this case are not in dispute.     On May 6, 2000,

about 7:00 p.m., Officer John Hastings (Hastings) was on patrol

in Arlington County in a marked police cruiser when he saw a

white Dodge Durango parked illegally.    The driver matched the

description of a burglary suspect.    He called the police

communications center and learned that the car had been reported

stolen.   Hastings followed the vehicle and when the Durango

stopped at a gas station, Hastings activated his emergency

lights, got out of his cruiser, and ordered the driver and

another occupant to get out of the vehicle.    Initially, both

occupants raised their hands, but the driver did not turn off

the vehicle.   The driver looked at Hastings, then drove away at

a high rate of speed.   The passenger jumped out.

     Hastings chased the Durango.     The driver increased his

speed, drove on the shoulder, across a double yellow line into

opposing traffic lanes, and ignored red lights.     The Durango

merged onto Route 66 westbound and drove from Arlington County

into the City of Falls Church and later Fairfax County at speeds

of up to approximately 110 miles per hour.    The Durango turned
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onto the Capital Beltway and exited onto Route 50 in Fairfax

County.   The driver failed to stop for a red light at the end of

the ramp and struck the rear of a vehicle that had the green

light.    He turned onto Lee Highway, accelerated to 80 miles per

hour, and swerved into oncoming traffic in order to avoid a

police roadblock.   The chase ended when the Durango struck a

blue sedan head-on.   Hastings estimated that the Durango was

"going on 55 to 60 miles an hour" when it struck the sedan.

Both vehicles sustained "very severe" damage.   At trial,

Hastings identified appellant as the driver of the Durango.

     Paul Basham (Basham), an accident investigator, testified

that he met with Mr. Cusak, the driver of the blue sedan struck

by the Durango.   After appellant was apprehended, Basham went to

the hospital emergency room and watched a doctor with a hand

drill drilling into Cusak's right thigh.   Five months later,

Basham saw Cusak and noted that he was only able to walk with

the assistance of crutches.

     At trial, appellant objected to Arlington County as the

proper venue because the accident causing injury to the victim

occurred in Fairfax County.   He argued that the injury-producing

accident was a necessary element of the felony offense and it

did not occur in Arlington County.   The trial court overruled

the objection, and the jury convicted the appellant of the

felony of speeding to elude a law enforcement officer resulting

in serious bodily injury to another.
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                                     II.

        Code § 19.2-244 provides that, "[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."

        Venue is reviewed 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."

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.       Id.   In either case, the evidence must

be sufficient to present 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) (quoting Keesee v. Commonwealth, 216 Va. 174, 175, 217

S.E.2d 808, 810 (1975)).

        Code § 46.2-817 provided, 2 in pertinent part:

               Any person who, having received a visible or
               audible signal from any law-enforcement
               officer to bring his motor vehicle to a
               stop, drives such motor vehicle in a willful
               or wanton disregard of such signal so as to

        2
            Code § 46.2-817(B) was amended in 1999, effective July 1,
2000.        It now provides inter alia:

               Any person who, having received a visible or
               audible signal from any law-enforcement
               officer to bring his motor vehicle to a
               stop, drives such motor vehicle in a willful
               and wanton disregard of such signal so as to
               interfere with or endanger the operation of
               the law-enforcement vehicle or endanger a
               person shall be guilty of a Class 6 felony.
                                - 4 -
           interfere with or endanger the operation of
           the law-enforcement vehicle or endanger
           other property or a person, or who increases
           his speed and attempts to escape or elude
           such law-enforcement officer, shall be
           guilty of a Class 1 misdemeanor.

                If serious bodily injury to another
           results from a violation of the preceding
           paragraph, the offender shall be guilty of a
           Class 6 felony.

     Appellant contends that his initial driving behavior which

began in Arlington County as a misdemeanor could not be

transmuted to a felony because a necessary element of the

"felony offense" occurred not in Arlington County but in Fairfax

County.   Thus, while the evidence may have established a

continuing misdemeanor offense of speeding to elude in both

Arlington County and Fairfax County the requisite element of

serious bodily injury occurred only in Fairfax County and, as

such, required the felony offense to be tried in that venue.

     The Commonwealth argues that because speeding to elude is a

continuing offense, the statutory language requiring serious

bodily injury to elevate the offense to a felony is an enhanced

penalty provision rather than an essential element of the

felony.   We hold that under the facts of this case, the

misdemeanor speeding to elude is a continuing offense which

could be prosecuted in either Arlington County where the offense

began or Fairfax County where the chase ended.   However, all the

necessary elements to establish the felony eluding occurred only


                            - 5 -
in Fairfax County and, thus, venue was proper only in Fairfax

County.

     "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."

United States v. Midstate Horticultural Company, 306 U.S. 161,

166 (1939).   See also Dunlavey v. Commonwealth, 184 Va. 521, 35

S.E.2d 763 (1945) (when property is stolen in one county and the

thief is found with goods in another, venue for larceny is

proper in either); Barber v. Commonwealth, 5 Va. App. 172, 360

S.E.2d 888 (1987) (because conspiracy is a continuing offense,

venue may be proper in more than one place).

     Our analysis in Green v. Commonwealth, 32 Va. App. 438, 528

S.E.2d 187 (2000), is applicable to the instant case.     Green was

charged with several drug offenses, including transporting one

ounce or more of cocaine into the Commonwealth in violation of

Code § 18.2-248.01.   The evidence established that before the

drugs reached Suffolk, the Newport News police intercepted the

shipment and removed all of the cocaine except one gram, which

reduced the amount of drugs shipped to Suffolk below that

required for a violation of the statute.   We held that

          venue properly existed in each jurisdiction
          through which "one ounce or more of cocaine"
          was transported, but not in those
                           - 6 -
          jurisdictions where less than the required
          amount was transported. Because no evidence
          established that the completed transaction
          of "one ounce or more of cocaine" occurred
          in the City of Suffolk, we conclude that
          venue on the transportation charge was
          improper in that jurisdiction.

Id. at 449, 528 S.E.2d at 192.

     In the instant case, appellant engaged in a continuous

course of reckless and dangerous driving behavior.   All elements

required for the misdemeanor offense defined in Code § 46.2-817

were complete in both Arlington County and Fairfax County.    Like

the defendant in Green, appellant could be tried in either venue

on that offense.   However, the felony offense of speeding to

elude resulting in serious bodily injury was not complete until

the accident in Fairfax County injured the victim, Mr. Cusak.

That element of the felony offense did not occur in Arlington

County and, thus, venue was improper in that jurisdiction.

     Consequently, we find that the Commonwealth failed to prove

venue and reverse the conviction.   However,

          proof of venue . . . is not regarded as
          material, so far as the merits of the
          prosecution are concerned, and so the
          allegation of venue is not part of the
          crime. Because the foregoing error did not
          stem from evidentiary insufficiency with
          respect to the guilt or innocence of the
          defendant, the case will be remanded [to the
          Circuit Court of Arlington County for
          transfer to the Circuit Court of Fairfax
          County] for further proceedings, if the
          Commonwealth be so advised.



                            - 7 -
Sutherland v. Commonwealth, 6 Va. App. 378, 383, 368 S.E.2d 295,

298 (1988) (internal citations omitted).

                                           Reversed and remanded.




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