COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Chaney, Callins and Senior Judge Humphreys Argued by videoconference
CAL BYREN KILBY MEMORANDUM OPINION* BY v. Record No. 1451-23-4 JUDGE VERNIDA R. CHANEY APRIL 29, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WARREN COUNTY Daryl L. Funk, Judge
Alasen Schell (Pond Law Group, P.C., on brief), for appellant.
David A. Stock, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, Cal Byren Kilby was convicted of possessing fentanyl. Kilby argues
that the trial court erred in denying his motion to strike because the Commonwealth failed to prove
venue.1 This Court finds that the evidence did not establish venue in Warren County. Accordingly,
this Court reverses Kilby’s conviction and remands for a new trial if the Commonwealth elects.
BACKGROUND
On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.”
Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Kilby also asserts that the trial court erred “in not specifically ruling on whether it took judicial notice of the situs of the offense” and in concluding that the police officers “appropriately identified” him. Given our ruling that the Commonwealth failed to prove venue, we need not consider these arguments. See, e.g., Rebh v. Cnty. Bd. of Arlington Cnty., __ Va. __ (Nov. 27, 2024) (“Our doctrine of judicial restraint requires appellate courts to decide cases ‘on the best and narrowest ground available.’” (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010)). Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v.
Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26
Va. App. 335, 348 (1998)).
On the afternoon of March 9, 2022, Investigator Jason Lombard of the Warren County
Sheriff’s Office was on patrol in an unmarked police vehicle. Investigator Lombard observed
Kilby driving a vehicle on “Happy Creek Road in the area of Robinson’s Grocery.” The officer
knew Kilby and was aware that Kilby had a Maryland driver’s license, but Kilby had “lived in
Warren County for several years and still hadn’t obtained his Virginia license” as required by
Virginia law.2 The investigator also had received information from the Front Royal Police
Department about Kilby possibly transporting narcotics in his car.
Investigator Lombard activated his emergency equipment and stopped Kilby’s car at the
side of Robinson’s Grocery after turning from Happy Creek Road. Working with Master Deputy
Griffith of the Warren County Sheriff’s Office, a trained police dog sniffed the outside of Kilby’s
car and indicated the presence of narcotics. As a result, Investigator Lombard searched Kilby’s
car. Inside a compartment in the steering column, the police found a plastic bag containing many
capsules of suspected controlled substances. Investigator Lombard stated that “typically in our
area” gel capsules of that type originated in Baltimore.
Investigator Lombard submitted the capsules for testing at the state laboratory with a
request for laboratory examination (RFLE) form. The RFLE form, introduced as
Commonwealth’s Exhibit 1, had the word “Warren” written into the blank space labelled
2 Investigator Lombard believed Kilby’s address was on “Shenandoah Shores Road.” The officer thought Kilby had a bedroom at that residence. -2- “Jurisdiction of Offense.” The RFLE form indicated that the agency submitting the evidence
was the Warren County Sheriff’s Office. Testing proved that the capsules contained fentanyl
mixed with other controlled substances.
In a motion to strike, Kilby argued that the evidence did not identify him or prove that the
drugs were in his constructive possession. Kilby also contended there was insufficient evidence
to prove that the offense occurred in Warren County and thus establish venue in the trial court.
The prosecutor responded that the trial court could “take judicial notice that the road that he was
on and the grocery store are in Warren County.” Without commenting on judicial notice, the
trial court denied the motion to strike the charge. Kilby presented no evidence. The trial court
said that the defense was not required to renew its motion to strike, but that the court would
reach the same conclusion and deny the motion to strike under the higher standard applicable at
the end of all the evidence.
The jury found Kilby guilty of possessing fentanyl, and this appeal followed.
ANALYSIS
Kilby argues venue was improper because the Commonwealth failed to prove that the traffic
stop, and thus the drug possession, occurred in Warren County. The Commonwealth bears the
burden of proving venue. Williams v. Commonwealth, 289 Va. 326, 332 (2015). To do so, it
must produce evidence sufficient to give rise to “a ‘strong presumption’ that the offense was
committed within the territorial jurisdiction of the court.” Id. (quoting Harding v.
Commonwealth, 132 Va. 543, 548 (1922)); see also Gheorghiu v. Commonwealth, 280 Va. 678,
689 (2010) (recognizing that venue is not a substantive element of a crime and need not be
proved beyond a reasonable doubt). When an appellate court reviews a challenge to proof of
venue, it considers “whether the evidence, when viewed in the light most favorable to the
Commonwealth, is sufficient to support the [trial court’s] venue findings.” Bonner v.
-3- Commonwealth, 62 Va. App. 206, 211 (2013) (en banc) (alteration in original) (quoting
Foster-Zahid v. Commonwealth, 23 Va. App. 430, 442 (1996)). Virginia’s venue statute directs
that, in the absence of a special statute providing otherwise, “the prosecution of a criminal case
shall be had in the county or city in which the offense was committed.” Code § 19.2-244(A).
The Commonwealth may show that the crime occurred within the trial court’s jurisdiction “with
direct or circumstantial evidence.” Taylor v. Commonwealth, 58 Va. App. 185, 190 (2011).
Despite the deferential standard afforded the Commonwealth’s proof of venue, the
Supreme Court of Virginia has made clear that an allegation of venue in the indictment and the
fact that the law enforcement officers in the case are from the trial court’s jurisdiction does not,
without more, “support an inference that the crime took place within the . . . territorial
jurisdiction” of that court. Williams, 289 Va. at 336-37; see Keesee v. Commonwealth, 216 Va.
174, 175 (1975) (“The mere fact[] that the local police department was involved in the
investigation of the crimes . . . will not suffice.”). Here, Warren County deputies stated only that
the stop occurred near Robinson’s Grocery after turning from Happy Creek Road. The
indictment only generally referenced that the offense occurred in Warren County, without
mentioning either Happy Creek Road or identifying the location of Robinson’s Grocery.
Investigator Lombard and Deputy Griffith did not testify that the location of the stop was in
Warren County. As in Williams and Keesee, therefore, the fact and circumstance that the Warren
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Chaney, Callins and Senior Judge Humphreys Argued by videoconference
CAL BYREN KILBY MEMORANDUM OPINION* BY v. Record No. 1451-23-4 JUDGE VERNIDA R. CHANEY APRIL 29, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WARREN COUNTY Daryl L. Funk, Judge
Alasen Schell (Pond Law Group, P.C., on brief), for appellant.
David A. Stock, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, Cal Byren Kilby was convicted of possessing fentanyl. Kilby argues
that the trial court erred in denying his motion to strike because the Commonwealth failed to prove
venue.1 This Court finds that the evidence did not establish venue in Warren County. Accordingly,
this Court reverses Kilby’s conviction and remands for a new trial if the Commonwealth elects.
BACKGROUND
On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.”
Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Kilby also asserts that the trial court erred “in not specifically ruling on whether it took judicial notice of the situs of the offense” and in concluding that the police officers “appropriately identified” him. Given our ruling that the Commonwealth failed to prove venue, we need not consider these arguments. See, e.g., Rebh v. Cnty. Bd. of Arlington Cnty., __ Va. __ (Nov. 27, 2024) (“Our doctrine of judicial restraint requires appellate courts to decide cases ‘on the best and narrowest ground available.’” (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010)). Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v.
Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26
Va. App. 335, 348 (1998)).
On the afternoon of March 9, 2022, Investigator Jason Lombard of the Warren County
Sheriff’s Office was on patrol in an unmarked police vehicle. Investigator Lombard observed
Kilby driving a vehicle on “Happy Creek Road in the area of Robinson’s Grocery.” The officer
knew Kilby and was aware that Kilby had a Maryland driver’s license, but Kilby had “lived in
Warren County for several years and still hadn’t obtained his Virginia license” as required by
Virginia law.2 The investigator also had received information from the Front Royal Police
Department about Kilby possibly transporting narcotics in his car.
Investigator Lombard activated his emergency equipment and stopped Kilby’s car at the
side of Robinson’s Grocery after turning from Happy Creek Road. Working with Master Deputy
Griffith of the Warren County Sheriff’s Office, a trained police dog sniffed the outside of Kilby’s
car and indicated the presence of narcotics. As a result, Investigator Lombard searched Kilby’s
car. Inside a compartment in the steering column, the police found a plastic bag containing many
capsules of suspected controlled substances. Investigator Lombard stated that “typically in our
area” gel capsules of that type originated in Baltimore.
Investigator Lombard submitted the capsules for testing at the state laboratory with a
request for laboratory examination (RFLE) form. The RFLE form, introduced as
Commonwealth’s Exhibit 1, had the word “Warren” written into the blank space labelled
2 Investigator Lombard believed Kilby’s address was on “Shenandoah Shores Road.” The officer thought Kilby had a bedroom at that residence. -2- “Jurisdiction of Offense.” The RFLE form indicated that the agency submitting the evidence
was the Warren County Sheriff’s Office. Testing proved that the capsules contained fentanyl
mixed with other controlled substances.
In a motion to strike, Kilby argued that the evidence did not identify him or prove that the
drugs were in his constructive possession. Kilby also contended there was insufficient evidence
to prove that the offense occurred in Warren County and thus establish venue in the trial court.
The prosecutor responded that the trial court could “take judicial notice that the road that he was
on and the grocery store are in Warren County.” Without commenting on judicial notice, the
trial court denied the motion to strike the charge. Kilby presented no evidence. The trial court
said that the defense was not required to renew its motion to strike, but that the court would
reach the same conclusion and deny the motion to strike under the higher standard applicable at
the end of all the evidence.
The jury found Kilby guilty of possessing fentanyl, and this appeal followed.
ANALYSIS
Kilby argues venue was improper because the Commonwealth failed to prove that the traffic
stop, and thus the drug possession, occurred in Warren County. The Commonwealth bears the
burden of proving venue. Williams v. Commonwealth, 289 Va. 326, 332 (2015). To do so, it
must produce evidence sufficient to give rise to “a ‘strong presumption’ that the offense was
committed within the territorial jurisdiction of the court.” Id. (quoting Harding v.
Commonwealth, 132 Va. 543, 548 (1922)); see also Gheorghiu v. Commonwealth, 280 Va. 678,
689 (2010) (recognizing that venue is not a substantive element of a crime and need not be
proved beyond a reasonable doubt). When an appellate court reviews a challenge to proof of
venue, it considers “whether the evidence, when viewed in the light most favorable to the
Commonwealth, is sufficient to support the [trial court’s] venue findings.” Bonner v.
-3- Commonwealth, 62 Va. App. 206, 211 (2013) (en banc) (alteration in original) (quoting
Foster-Zahid v. Commonwealth, 23 Va. App. 430, 442 (1996)). Virginia’s venue statute directs
that, in the absence of a special statute providing otherwise, “the prosecution of a criminal case
shall be had in the county or city in which the offense was committed.” Code § 19.2-244(A).
The Commonwealth may show that the crime occurred within the trial court’s jurisdiction “with
direct or circumstantial evidence.” Taylor v. Commonwealth, 58 Va. App. 185, 190 (2011).
Despite the deferential standard afforded the Commonwealth’s proof of venue, the
Supreme Court of Virginia has made clear that an allegation of venue in the indictment and the
fact that the law enforcement officers in the case are from the trial court’s jurisdiction does not,
without more, “support an inference that the crime took place within the . . . territorial
jurisdiction” of that court. Williams, 289 Va. at 336-37; see Keesee v. Commonwealth, 216 Va.
174, 175 (1975) (“The mere fact[] that the local police department was involved in the
investigation of the crimes . . . will not suffice.”). Here, Warren County deputies stated only that
the stop occurred near Robinson’s Grocery after turning from Happy Creek Road. The
indictment only generally referenced that the offense occurred in Warren County, without
mentioning either Happy Creek Road or identifying the location of Robinson’s Grocery.
Investigator Lombard and Deputy Griffith did not testify that the location of the stop was in
Warren County. As in Williams and Keesee, therefore, the fact and circumstance that the Warren
County Sheriff’s Office was involved in this enforcement action does not prove that Warren
County was the proper venue of the offense.
The Commonwealth claims that it proved venue because the RFLE form, listing “Warren”
as the jurisdiction, was admitted into evidence as an exhibit. However, the Commonwealth cites no
published Virginia legal authority holding that the Commonwealth may establish venue through a
single reference in a document introduced, not to establish venue, but to support the chain of
-4- custody. The RFLE form does not create a “strong presumption” that Kilby possessed fentanyl
in Warren County. Cf. Anderson v. Commonwealth, 48 Va. App. 704, 715 (2006) (holding in the
confrontation context that “chain of custody verification provides only foundation evidence that
cannot be fairly characterized as accusatorial” (citing, e.g., State v. Carter, 114 P.3d 1001, 1007
(Mont. 2005) (holding “certification reports are nontestimonial in nature in that they are
foundational, rather than substantive or accusatory”))).
“[P]roof 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 a part of the crime.” Williams, 289 Va. at
337 (second alteration in original) (quoting Randall v. Commonwealth, 183 Va. 182, 187
(1944)). “Because failure to offer proof establishing proper venue ‘did not stem from
evidentiary insufficiency with respect to the guilt or innocence of the defendant,’” id. at 337-38
(quoting Pollard v. Commonwealth, 220 Va. 723, 726 (1980)), we remand the case to the trial
court for a new trial if the Commonwealth be so advised.
CONCLUSION
For the foregoing reasons, this Court reverses and remands the trial court’s judgment.
Reversed and remanded.
-5-