COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia
RALPH DERON JAMAL THOMAS
OPINION BY
v. Record No. 0872-00-2 JUDGE JERE M. H. WILLIS, JR.
JULY 31, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Wendy B. Harris, Assistant Public Defender
(James J. Ilijevich, Deputy Public Defender,
on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from his convictions of four counts of rape, in
violation of Code § 18.2-61, and one count of attempted sodomy,
in violation of § 18.2-67.1, Ralph Deron Jamal Thomas contends
that the trial court erred (1) in denying his motion to set
aside the verdict based on insufficient proof of jurisdiction
and (2) in denying his motion for a mistrial based on improper
argument by the Commonwealth's attorney. For the following
reasons, we reverse and remand.
I. BACKGROUND
In April 1996, Thomas married the mother of the
eleven-year-old victim, W.B., and moved into her home.
The child testified that on or about April 6, 1998, when no
one else was home, Thomas "had sex with" her at their home
located at "807 Denton Circle" in "Bragg Hill." She testified
that Thomas told her to take off her clothes and get on the bed.
When she did so, Thomas "put his penis in [her] vagina."
The child testified that similar events occurred at the
same house two days later. Again, Thomas told her to disrobe
and stuck his penis into her vagina. She stated that, on this
occasion, Thomas also "flipped [her] over on [her] stomach" and
placed his penis into her "rectum."
The child further testified that on each of the following
two days, Thomas inserted his penis into her vagina and that he
did it twice on the last day. She explained that she did not
tell anyone because Thomas threatened her that "something bad"
would happen to her if she did. She stated that Thomas had
beaten her in the past.
In September 1998, the child moved to a Spotsylvania County
address to live with her father. In March 1999, the child told
her father's girlfriend, Tanya Long, what Thomas had done.
Ms. Long testified that when the child told her what had
happened, the child was "really upset. She was crying." Ms.
Long testified that she contacted the Spotsylvania Sheriff's
Department, and was told by an officer there that "since it
happened in Fredericksburg," she should call the Fredericksburg
Police Department.
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Thomas denied that the incidents occurred. He testified
that the child had trouble in school while she lived with him.
He presented several witnesses who testified that the child's
reputation for truthfulness was not good.
Thomas was found guilty by the jury, and a sentencing
hearing was scheduled. At the sentencing hearing, the trial
court instructed the jury on the unavailability of parole. In
argument, Thomas' counsel asked the jury to give Thomas
"twenty-two years," stating that "he'll be forty-seven years
old" in twenty-two years, and that he would "do the time" that
the jury gave him.
In rebuttal argument, the Commonwealth's attorney stated,
"The judge did tell you that [Thomas] is not eligible for
parole. That doesn't mean necessarily that if you give him
twenty-two years, he will not get out until he's forty-seven.
There are certain provisions in the Code of Virginia that would
. . . ." Thomas objected. The trial court sustained the
objection, admonishing the Commonwealth's attorney "not to
instruct the jury on the law." The Commonwealth's attorney
pursued this argument no further.
During their deliberations, the jury sent a note to the
court asking, "If the defendant is sentenced to the minimum
sentence, is it possible (according to the law) that he be
released before this?" Thomas moved for a mistrial, arguing
that the objectionable portion of the Commonwealth's argument
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had caused the jury's question. The trial court denied the
motion. The jury fixed Thomas' sentences at ten years on each
charge, a total of fifty years, which the trial court imposed
with twenty years suspended.
Post-trial, Thomas moved to set aside the jury's verdict,
arguing, inter alia, that the trial court's subject matter
jurisdiction had not been proved. That motion was denied.
II. SUBJECT MATTER JURISDICTION
Thomas contends the trial court erred when it denied his
motion to set aside the verdict for lack of subject matter
jurisdiction. 1 He argues that the evidence failed to prove that
the offenses with which he was charged occurred in
Fredericksburg, Virginia. The Commonwealth responds that the
Fredericksburg location was proved by circumstantial evidence
and by judicial notice. It further argues that the territorial
question raised by Thomas goes not to jurisdiction, but to
venue, required to be raised pre-verdict. See Code § 19.2-244.
It argues that because Thomas failed to raise this issue timely,
it is waived. We agree with Thomas' position.
1
The criminal jurisdiction of the circuit courts is
specified in Code §§ 19.2-239 and 17.1-513. Code § 19.2-239
grants the circuit courts jurisdiction in criminal cases for
"all presentments, indictments and information for offenses
committed within their respective circuits." Code § 17.1-513
provides the circuit courts with jurisdiction over all felonies
committed in the Commonwealth.
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(A). CIRCUMSTANTIAL EVIDENCE
The Commonwealth notes that when Ms. Long reported the
incidents to the Spotsylvania County Sheriff's Department, an
officer there directed her to the Fredericksburg Police
Department "since [the offenses] happened in Fredericksburg."
The offenses were investigated by the Fredericksburg police.
The official documentation specifying the charges asserted that
the offenses had occurred in Fredericksburg.
Allegations of venue contained solely in an
indictment cannot supply proof [of venue and
subject matter jurisdiction]. The mere fact
that police of a certain jurisdiction
investigate a crime cannot support an
inference that the crime occurred within
their jurisdiction.
Sutherland v. Commonwealth, 6 Va. App. 378, 382, 368 S.E.2d 295,
297 (1988) (citations omitted). See also Owusu v. Commonwealth,
11 Va. App. 671, 401 S.E.2d 431 (1991). The mere fact that a
Spotsylvania officer asserted to Ms. Long that the events
happened in Fredericksburg is no more persuasive than the
undertaking by the Fredericksburg police to investigate the
case. Thus, the circumstantial evidence failed to prove that
the events occurred in Fredericksburg.
(B). JUDICIAL NOTICE
The trial court, familiar with the entire record, stated:
"The identification as a location within the City of
Fredericksburg, identification by street address." The
Commonwealth argues that the trial court thereby took judicial
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notice that "807 Denton Circle" and "Bragg Hill" are located
within the City of Fredericksburg. The record does not support
that contention.
"Judicial notice permits a court to determine the existence
of a fact without formal evidence tending to support that fact."
Scafetta v. Arlington County, 13 Va. App. 646, 648, 414 S.E.2d
438, 439, aff'd on reh'g, 14 Va. App. 834, 425 S.E.2d 807
(1992). "A trial court may take judicial notice of those facts
that are either (1) so 'generally known' within the jurisdiction
or (2) so 'easily ascertainable' by reference to reliable
sources that reasonably informed people in the community would
not regard them as reasonably subject to dispute." Taylor v.
Commonwealth, 28 Va. App. 1, 7-8, 502 S.E.2d 113, 116 (1998) (en
banc) (citations omitted).
"[T]he fact of judicial notice must appear from the
record." Sutherland, 6 Va. App. at 383, 368 S.E.2d at 298
(citing Keesee v. Commonwealth, 216 Va. 174, 175, 217 S.E.2d
808, 809 (1975)). The record discloses neither that the trial
court took judicial notice of the location of "807 Denton
Circle" or "Bragg Hill," nor that either address is, as a matter
of common knowledge, located within the City of Fredericksburg,
Virginia.
(C). JURISDICTION V. VENUE
The Commonwealth argues that the issue raised by Thomas
addresses not jurisdiction, but merely venue. We disagree. The
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jurisdictional grant set forth in Code § 19.2-239 empowers the
circuit court to try charges relating to offenses committed
within the Commonwealth. The Commonwealth's jurisdiction over
those offenses is essential to the exercise of that
jurisdiction. The venue provision of Code § 19.2-244 addresses
only the locality, within the Commonwealth, in which such
charges may be tried. The evidence in this case failed to prove
that the offenses charged occurred at a locality within the
Commonwealth and, thus, failed to prove that the offenses
occurred in the Commonwealth. This created a deficiency in
proof of jurisdiction.
This case is controlled by Owusu. The indictment in that
case alleged a robbery at Horner Road Exxon in Prince William
County. However, the evidence disclosed only that the robbery
occurred at Horner Road Exxon and that it had been investigated
by the Prince William County Police Department. Reversing
Owusu's conviction for the Commonwealth's failure to prove
subject matter jurisdiction, we said:
[S]ubject matter jurisdiction "must
affirmatively appear on the face of the
record, that is, the record must show
affirmatively that the case is one of a
class in which the court rendering the
judgment was given cognizance." . . . [W]e
find no direct or circumstantial evidence
tending to prove that the offenses occurred
within the Commonwealth of Virginia. No
street address, town, or locality was
mentioned with respect to the location of
the offenses.
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Owusu, 11 Va. App. at 673, 401 S.E.2d at 432 (citation omitted).
The evidence in this case mentions a street address and "Bragg
Hill." However, nothing in the record ties either location to a
locality within the Commonwealth.
In Owusu, we described the failure of locational proof as a
failure to prove "subject matter jurisdiction." This failure of
proof impaired the trial court's "subject matter jurisdiction"
because it impaired the ability of the trial court to try the
accusation before it. The essence of the impairment, however,
went not to the true subject matter of the case, the
classification of the issues on trial, but rather to proof that
the events alleged occurred within the trial court's territorial
jurisdiction. Thus, the issue in Owusu was, in the strictest
sense, an issue of territorial jurisdiction, as is the issue in
this case. See Foster-Zahid v. Commonwealth, 23 Va. App. 430,
435-41, 477 S.E.2d 759, 761-64 (1996); Curtis v. Commonwealth,
13 Va. App. 622, 629, 414 S.E.2d 421, 425 (1992).
While the Commonwealth's failure to prove jurisdiction
requires reversal of Thomas' convictions, it does not require
dismissal of the charges again him. As we said in Owusu:
[P]roof of subject matter jurisdiction is
not part of the crime, and therefore, does
not go to the merits of the case.
Therefore, the case will be remanded for
further proceedings . . . .
11 Va. App. at 674, 401 S.E.2d at 432.
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III. COMMONWEALTH'S ATTORNEY'S ARGUMENT
The Commonwealth's attorney's argument, complained of on
appeal, was improper and was properly curbed by the trial court.
Because this argument is unlikely to occur on retrial, we need
not address it further.
The judgment of the trial court is reversed, and this case
is remanded for further proceedings, if the Commonwealth be so
advised.
Reversed and remanded.
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