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.
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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
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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
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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.
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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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