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Williams v. Commonwealth

Court of Appeals of Virginia

June 10, 2014

TONY WILLIAMS
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. Everett A. Martin, Jr., Judge.

J. Barry McCracken, Assistant Public Defender, for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Kelsey, Beales and Decker. OPINION BY JUDGE RANDOLPH A. BEALES.

OPINION

Page 554

[63 Va.App. 460] RANDOLPH A. BEALES, JUDGE.

Tony Williams (appellant) was found guilty of one count of possession of a Schedule I or II substance with intent to distribute (third offense) in violation of Code § 18.2-248(C). Appellant argues that the trial court erred in finding that it had venue over the offense on the ground that the evidence did not establish a strong presumption that the offense was committed within the City of Norfolk, the territorial jurisdiction of the trial court. We hold that the trial court did not err when it found that it had venue over the offense, and, accordingly, for the following reasons, we affirm appellant's conviction for possession of a Schedule I or II substance with intent to distribute (third offense).

I. Background

We consider the evidence on appeal " 'in the light most favorable to the Commonwealth as we must since it was the prevailing party'" in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). In this case, Investigator Issoufou Boubacar of the Norfolk Police Department conducted an undercover drug transaction. When Investigator Boubacar approached appellant at the 1700 block of O'Keefe Street, which Boubacar testified is in the City of Norfolk, he told appellant that he was looking for " hard" -- which, according to the investigator's testimony, is a street name for crack cocaine. Appellant agreed to assist Investigator Boubacar in buying some " hard," and he indicated that the two of them would need to drive to the 800 block of Fremont Street.

[63 Va.App. 461] Investigator Boubacar testified that the 800 block of Fremont Street was " over there," relative to the 1700 block of O'Keefe Street in Norfolk.[1] When appellant and Investigator Boubacar arrived at the 800 block of Fremont Street, appellant asked Investigator Boubacar what quantity of crack cocaine he wanted to buy. Investigator Boubacar told appellant that he was seeking $20 worth of crack cocaine. Investigator Boubacar gave appellant $20, appellant contacted another unnamed individual, and appellant returned to the vehicle and handed Investigator Boubacar two plastic bags of what turned out to be crack cocaine. After appellant handed the crack cocaine to Investigator Boubacar, appellant instructed Investigator Boubacar to drive back to the 1700 block of O'Keefe Street. Upon arriving at the 1700 block of O'Keefe Street, appellant was arrested.

At the conclusion of the Commonwealth's evidence, appellant made a motion to strike on two grounds. First, appellant moved to strike on the ground that the City of Norfolk was an improper venue for the trial, arguing that the Commonwealth's evidence never established where the 800 block of Fremont Street is located.[2] Second, appellant moved to strike on the ground that the Commonwealth had failed to establish a proper chain of custody.[3] As to the venue argument, the Commonwealth argued that the trial court should take judicial notice of the location of the 800 block of Fremont Street, stating, " I think it's reasonable for the Court to take judicial notice that they were still within the City of Norfolk" [63 Va.App. 462] when the drug transaction took place. The trial court overruled both of appellant's motions at the conclusion of the parties' arguments, stating, " I overrule the motions."

II. Analysis

" Except as otherwise provided by law, the prosecution of a criminal case shall be had in the ...


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