Patrick Raymond Long v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: March 25, 1997
• Docket: 2031954
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Senior Judge Hodges Argued at Alexandria, Virginia

PATRICK RAYMOND LONG MEMORANDUM OPINION * BY v. Record No. 2031-95-4 JUDGE RICHARD S. BRAY MARCH 25, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY William L. Winston, Judge Mark S. Thrash for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Patrick Raymond Long (defendant) was convicted in a bench

trial of embezzlement and forgery. On appeal, he contends that

the evidence was insufficient to establish the requisite venue in

the trial court for the forgery offense. We agree and reverse

the conviction.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987). The judgment of a trial court, sitting * Pursuant to Code § 17-116.010 this opinion is not designated for publication. without a jury, is entitled to the same weight as a jury verdict

and will be disturbed only if plainly wrong or without evidence

to support it. See id.

Forgery is "the fraudulent making of a false writing, which,

if genuine, would be apparently of legal efficacy." Muhammad v.

Commonwealth, 13 Va. App. 194, 196, 409 S.E.2d 818, 819 (1991)

(quoting Terry v. Commonwealth, 87 Va. 672, 674, 13 S.E. 104, 105

(1891)). A forgery prosecution may take place "in any county or

city where the writing was forged, or where the same was used or

passed, or attempted to be used or passed, or deposited or placed

with another person, firm, association, or corporation either for

collection or credit . . . ." Code § 19.2-245.1; see Code § 19.2-244. "[T]he burden is upon the Commonwealth to prove

venue by evidence which is either direct or circumstantial. Such

evidence must furnish the foundation for a 'strong presumption'

that the offense was committed within the jurisdiction of the

court." Pollard v. Commonwealth, 220 Va. 723, 725, 261 S.E.2d

328, 330 (1980) (citation omitted).

Here, the evidence established that defendant first obtained

the subject check, then blank, at Fred's Place, located in

Arlington County. He subsequently forged and "passed" the

instrument to his sister, Mary Jacobs, who negotiated it in

Alexandria. The evidence further proved that Jacobs frequented

Fred's Place, occasionally cashing checks at the business.

However, the record abandons to conjecture the actual situs of

- 2 - the forgery. See Pollard, 220 Va. at 726, 261 S.E.2d at 330

(evidence "wholly inadequate" to provide strong presumption of

venue when established only "that a City employee possessed

outside the City stolen City property which originally had been

assigned to a City vehicle").

Accordingly, we conclude that the trial court erroneously

concluded that the Commonwealth had established the requisite

venue in Arlington County and reverse the conviction. However,

because the "error did not stem from evidentiary insufficiency

with respect to [defendant's] guilt or innocence," we do not

dismiss the indictment, but remand for further proceedings

consistent with this opinion, if the Commonwealth be so advised. Id. (citing Burks v. United States, 437 U.S. 1, 15 (1978)).

Reversed and remanded.

- 3 -