As Corrected July 14, 2015.
FROM THE COURT OF APPEALS OF VIRGINIA.
Reversed and remanded.
J. Barry McCracken, Assistant Public Defender, for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
PRESENT: Lemons, C.J., Goodwyn, Millette, Mims, McClanahan, and Powell, JJ., and Koontz, S.J. JUSTICE POWELL, with whom JUSTICE McCLANAHAN joins, dissenting.
DONALD W. LEMONS, CHIEF
In this appeal, we consider whether the Court of Appeals erred by " inferring" that the trial court took judicial notice that the situs of an offense was within its territorial jurisdiction. We also consider under what circumstances an appellate court may properly take judicial notice of a fact not clearly noticed in the trial court. Finally, we decide whether the evidence was sufficient to prove venue in this case.
I. Facts and Proceedings
The appellant, Tony Williams (" Williams" ), was tried in the Circuit Court of the City of Norfolk (" trial court" ) and convicted of possession with intent to distribute cocaine (third offense) in violation of Code § 18.2-248. At trial, Norfolk Police Investigator Issoufou Boubacar (" Investigator Boubacar" ) testified that he was working as an undercover narcotics officer on the night of March 1, 2013, when he came into contact with Williams in the 1700 block of O'Keefe Street, which he testified is located in the City of Norfolk. Investigator Boubacar told Williams he wanted to buy " hard"  cocaine, and Williams " agreed to assist . . . in buying [the] crack cocaine."
Williams got into Investigator Boubacar's vehicle and instructed him " to drive to the 800-block of Fremont Street." Investigator Boubacar testified that the two men " drove over there." Once they arrived, Investigator Boubacar told Williams he wanted to buy 20 dollars' worth of cocaine and gave Williams 20 dollars of " Norfolk City recorded money."
Investigator Boubacar watched Williams get out of the vehicle and meet another man to make the purchase. Williams and the other individual were approximately 10 to 15 feet away from Investigator Boubacar during the transaction. When Williams returned to the vehicle, he handed Investigator Boubacar " two plastic [bags] containing [an] off-white hard substance," which later testing confirmed to be approximately 0.2 grams of cocaine, a Schedule II controlled substance. Williams then instructed Investigator Boubacar to return to the 1700 block of O'Keefe Street. When Investigator Boubacar and Williams returned to that location, an arrest team took Williams into custody.
At the conclusion of the Commonwealth's evidence, Williams moved to strike on two grounds: (1) that the Commonwealth failed to present sufficient evidence to establish chain of custody and (2) that the Commonwealth failed to prove venue. Williams argued that the Commonwealth failed to establish venue because, while Investigator Boubacar testified that the initial place of meeting - the 1700 block of O'Keefe Street - was in Norfolk, the Commonwealth never proved that the 800 block of Fremont Street was also located within the corporate limits of the City of Norfolk. Williams maintains that the evidence established that all the elements of the offense were committed in the 800 block of Fremont Street, therefore, the evidence was insufficient to prove venue.
The Commonwealth responded by arguing that Investigator Boubacar's testimony was sufficient for the trial court to take judicial notice of venue, stating, " I think it's reasonable
for the Court to take judicial notice that [Investigator Boubacar and Williams] were still within the City of Norfolk" when the drug transaction took place because Investigator Boubacar had testified " to initially coming into contact with the defendant in the City of Norfolk on O'Keefe Street, and . . . to the relatively short drive to Fremont Street." The trial court overruled both motions to strike at the conclusion of the parties' arguments, stating, " I overrule the motions," without commenting on judicial notice.
Williams presented no evidence and renewed his motions to strike, which the trial court again denied. The court immediately thereafter found the defendant guilty of the offense and ordered a presentence report. On August 16, 2013, following presentation of the presentence report, the trial court sentenced Williams to ten years' imprisonment, and an additional one year suspended conditioned on one year of post-release supervision.
Williams appealed to the Court of Appeals and assigned error to the trial court's finding that the Commonwealth presented sufficient evidence to establish venue. In a published opinion, the Court of Appeals affirmed Williams' conviction, holding that it could infer that the trial court had taken judicial notice of the fact that the 800 block of Fremont Street is located within the corporate limits of the City of Norfolk and, therefore, the evidence was sufficient to prove venue. Williams v. Commonwealth, 63 Va.App. 458, 466-67, 758 S.E.2d 553, 557 (2014). The Court of Appeals held that while the trial court never explicitly stated that it was taking judicial notice of the fact that the 800 block of Fremont Street was in Norfolk, in overruling Williams' motion to strike on venue, the Commonwealth specifically requested the trial court to do so and, therefore, it " can be safely inferred" that the trial court took judicial notice of that fact. Id. at 466, 758 S.E.2d at 557.
Williams appealed the judgment of the Court of Appeals to this Court, and we awarded an appeal on the following assignments of error:
1. The Court of Appeals erred in ruling that the trial court had taken judicial notice that the situs of the possession with intent to distribute was within the City of Norfolk and therefore within the territorial jurisdiction of the Court.
2. The Court of Appeals erred in finding that the trial court had venue over the offense of conviction because the evidence of record did not establish a strong presumption that the offense was committed within the territorial jurisdiction of the trial court.
A. Venue and Judicial Notice