Day v. Commonwealth

407 S.E.2d 52, 12 Va. App. 1078, 8 Va. Law Rep. 475, 1991 Va. App. LEXIS 204

• Court: Court of Appeals of Virginia
• Decided: August 6, 1991
• Docket: Record No. 1603-89-2
• Status: Published

Opinions

Opinion

WILLIS, J.

On December 20, 1988, four guns were stolen from the home of Robert and LeWalter Haney in Louisa County. Later that day, the appellant, in the company of Stanley Carter, sold the guns to Charles Redmond at Redmond’s home in Fluvanna County. The appellant testified that he had lent his car to Carter, and had then met Carter at Zion’s Cross Roads from whence they went to the Redmond home where the guns were sold. The appellant admitted to Deputy Sheriff Bryant that he had sold the guns to Redmond for Carter and that he knew that they were “hot.” He said, “Stanley Carter did give me some things to sell, things as guns . . . I did get rid of the items for him ... the place he met me at Cross Roads and on Route 15 and Charlottesville . . .” At trial, however, appellant testified that he met Carter at Zion’s Cross Roads.

Appellant was prosecuted for grand larceny of the guns. At the conclusion of the Commonwealth’s evidence, the trial court amended the charge to grand larceny by receiving stolen property. At the conclusion of the Commonwealth’s evidence, the appellant moved to strike the evidence on the ground that venue had not been established because the evidence did not show that he had received the property in Louisa County. This motion was denied, and the appellant presented his evidence. He did not renew the motion at the conclusion of all the evidence. Therefore, his objection to the sufficiency of the evidence to establish venue was waived. See White v. Commonwealth, 3 Va. App. 231, 348 S.E.2d 866 (1986).

After the jury returned its verdict finding him guilty, appellant moved that the verdict be set aside as contrary to the law and the evidence. When the trial court asked on what grounds, counsel for appellant answered, “to save the point.”

Appellant contends that his conviction should be reversed because venue was not proven. However, this argument was not preserved for appeal.

The appellant’s motion to strike the evidence on the ground that venue was not proven, though timely and sufficiently made, was waived by his failure to renew it at the conclusion of all the evidence. When he made his motion to set aside the verdict, there was no identified point “to save.” The motion to set aside the verdict did not state the venue question with sufficient particularity to submit that issue to the trial court. See Rule 5A:18. Furthermore, an objection to venue must be raised before verdict. Code § 19.2-244. The motion to set aside the verdict came too late to serve this purpose.

The judgment of the trial court is affirmed.

Affirmed.

Cole, J.,

* concurred.

Judge Cole participated in the hearing and decision of this case prior to the effective date of his retirement on April 30, 1991 and thereafter by designation pursuant to Code § 17-116.01.