David Andrew Lawhorn v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: October 26, 1999
• Docket: 2100983
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Bumgardner Argued at Salem, Virginia

DAVID ANDREW LAWHORN MEMORANDUM OPINION * BY v. Record No. 2100-98-3 JUDGE RICHARD S. BRAY OCTOBER 26, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Thomas H. Wood, Judge

(William E. Bobbitt, Jr., Public Defender, on brief), for appellant. Appellant submitting on brief.

Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

David Andrew Lawhorn (defendant) was convicted in a bench

trial for possession of a firearm by a convicted felon, a

violation of Code § 18.2-308.2. On appeal, he challenges only the

sufficiency of the evidence to prove venue in Augusta County.

Finding no error, we affirm the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. I.

In reviewing sufficiency of the evidence, we consider the

record "in the light most favorable to the Commonwealth,"

"discard[ing] all evidence of the accused that conflicts with that

of the Commonwealth and regard[ing] as true all credible evidence

favorable to the Commonwealth and all fair inferences reasonably

deducible therefrom." Lea v. Commonwealth, 16 Va. App. 300, 303,

429 S.E.2d 477, 479 (1993). The credibility of the witnesses, the

weight accorded testimony, and the inferences drawn from proven

facts are matters to be determined by the fact finder. See Long

v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The judgment of the trial court will not be disturbed unless

plainly wrong or unsupported by the evidence. See Code

§ 8.01-680.

Viewed accordingly, the instant record discloses that

Sergeant A.C. Powers of the Augusta County Sheriff's Department

secured a warrant to search defendant’s residence and automobile.

The warrant was supported by information provided by defendant's

estranged wife, Shelby Lawhorn, which pertained to a stolen "four

wheeler" and certain firearms. During the related search, Powers

discovered a 12-gauge shotgun in a bedroom of the home, a

9-millimeter pistol in the vehicle, and the four-wheeler "setting

[sic] right behind" "a couple of old sheds" "across from" the

residence. Powers testified that the house was located in

- 2 - Craigsville, Virginia, and that "the four wheeler was recovered in

the Craigsville, Augusta Springs area."

At the conclusion of the Commonwealth's case-in-chief,

defendant moved the court to strike the evidence on the firearm

charge, arguing that the record failed to establish that the

offense occurred in Augusta County. The court denied the motion,

taking "judicial notice," without objection, that "both Augusta

Springs and Craigsville are in . . . Augusta County."

Called as a defense witness, Shelby Lawhorn testified that

the couple acquired the residence by "deed of gift" in 1996 or

1997. However, in an effort to "get [defendant] in trouble," Mrs.

Lawhorn admitted informing Sergeant Powers that she had "inherited

some land in Craigsville" and had "heard through the grapevine

that there was some stolen property out there," specifically

mentioning a "four wheeler" and "the guns." She further testified

that "the house is in Rockbridge County" and related property

taxes were paid to that county, contrary to her prior statement to

Powers that the realty was situated in Augusta County.

Defendant also testified that the property was located in

Rockbridge County, but introduced neither the related deed nor tax

verification.

At the conclusion of all the evidence, defendant renewed his

motion to strike, again challenging the sufficiency of the

evidence to establish venue. In denying the motion, the court

commented that

- 3 - [t]he Commonwealth must produce evidence sufficient to give rise to a strong presumption that the offense was committed within the jurisdiction of the Court and what we have got here is the clear testimony of Mr. Powers that the Rockbridge line is a half a mile from where he was and we have the testimony of the Lawhorn's [sic], neither of whom are credible witnesses to the effect that it is in Rockbridge County. So this Court will find that it is a matter of fact in this case that this house in which this 12 gauge was found and the car in which the 9 millimeter were found were both located in Augusta County when they were found by Deputy Powers.

Defendant was subsequently convicted for the subject offense and

initiated this appeal.

II.

Generally, "the prosecution of a criminal case shall be had

in the county or city in which the offense was committed." Code

§ 19.2-244. To establish venue, the Commonwealth must "produce

evidence sufficient to give rise to a 'strong presumption' that

the offense was committed within the jurisdiction of the court,

and this may be accomplished by either direct or circumstantial

evidence." Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d

599, 604 (1990) (citation omitted). "'The facts proved may be

aided by judicial notice of geographical facts that are matters

of common knowledge or shown by maps in common use.'"

Sutherland v. Commonwealth, 6 Va. App. 378, 381, 368 S.E.2d 295,

297 (1988) (citation omitted).

- 4 - Here, Sergeant Powers' testimony established that the

offending firearms were found in the constructive possession of

defendant on property located in Craigsville, Augusta County,

Virginia. Without objection, the trial court took judicial

notice that Craigsville is located in Augusta County and

expressly rejected testimony of both defendant and Mrs. Lawhorn

to the contrary. See Moore v. Commonwealth, 25 Va. App. 277,

289, 487 S.E.2d 864, 870 (1997). Thus, the evidence

sufficiently supported the finding of a strong presumption that

the offense was committed in Augusta County.

Accordingly, we affirm the conviction.

Affirmed.

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