Wanda Kaye Turner v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 14, 1997
• Docket: 2804962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Willis and Elder Argued by Teleconference

WANDA KAYE TURNER MEMORANDUM OPINION * BY v. Record No. 2804-96-2 JUDGE JERE M. H. WILLIS, JR. OCTOBER 14, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HANOVER COUNTY Richard H. C. Taylor, Judge J. Overton Harris (Campbell, Campbell, Herbert & Harris, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Wanda Kaye Turner contends (1) that the trial court

erroneously denied her motion to strike the evidence, and (2)

that the Commonwealth failed to prove venue. Because venue was

not proven, we reverse the conviction and dismiss the indictment.

We view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom. See Traverso v. Commonwealth, 6 Va. App.

172, 176, 366 S.E.2d 719, 721 (1988).

Dr. Byrd operates his dental office in Hanover County. From

approximately July 5 until November 21, 1995, Turner was his

primary employee. Although she performed clerical duties for

him, she was not authorized to use the business checkbook which

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. was located in an unlocked filing cabinet.

In December 1995, upon examining his business bank

statements, Dr. Byrd discovered various checks out of sequence

and several checks missing. He determined that three of the

missing checks had been written for $625.29 each, payable to

Turner. Dr. Byrd recognized the handwriting as Turner's. One

check was dated Wednesday, November 8, 1995. Dr. Byrd testified

that he is not in his office on Wednesdays and that Turner was

the only person in his office that day. The bank statements revealed that Dr. Byrd's Central

Fidelity Bank business checking account was short the three

forged checks, each in the amount of $625.29. Central Fidelity

Bank reimbursed him that amount.

On March 19, 1996, a grand jury indicted Turner for grand

larceny of "property and/or U.S. currency" belonging to Dr. Byrd.

However, the indictment was amended and specifies that: Wanda Kaye Turner on or about June 1st through December 1st, in the year one thousand nine hundred and ninety-five, in the said County, and within the Jurisdiction of the said Circuit Court of the County of Hanover did unlawfully and feloniously take, steal and carry away U.S. currency from Central Fidelity Bank by cashing forged payroll checks having a value of $200 or more belonging to Eliott Bird [sic], D.D.S., with the intent to deprive the owner thereof permanently against the peace and dignity of the Commonwealth of Virginia.

Turner contends that no evidence proved that the offense was

committed within the trial court's jurisdiction. The

- 2 - Commonwealth argues that the checks used to effect the alleged

larceny of Central Fidelity Bank were removed from Dr. Byrd's

office in Hanover County which is within the jurisdiction of the

trial court. The Commonwealth cites Randall v. Commonwealth, 183

Va. 182, 31 S.E.2d 571 (1944), for the proposition that: "The failure clearly to prove venue is usually due to inadvertence, flowing naturally from the familiarity of the court, counsel, witnesses and jurors with the locality of the crime; and appellate courts will generally and properly lay hold of and accept as sufficient any evidence in the case, direct or otherwise, from which the fact may be reasonably inferred."

Id. at 187, 31 S.E.2d at 573 (citation omitted).

Code § 19.2-244 provides, in pertinent part, that: "Except

as otherwise provided by law, the prosecution of a criminal case

shall be had in the county or city in which the offense was

committed." While "[t]he Commonwealth may prove venue by either

direct or circumstantial evidence[,] . . . the evidence must be

sufficient to present a '"strong presumption" that the offense

was committed within the jurisdiction of the Court.'" Davis v.

Commonwealth, 14 Va. App. 709, 711, 419 S.E.2d 285, 287 (1992)

(citation omitted).

Turner was not indicted for stealing blank checks from Dr.

Byrd or for forgery. Rather, she was charged with larceny of

U.S. currency from Central Fidelity Bank. The record is devoid

of any reference to the location of Central Fidelity Bank -- the

alleged situs of the crime. While sufficient evidence

- 3 - establishes that Turner removed the blank checks in Hanover

County, we cannot infer upon that finding alone that a

subsequent, separate and distinct offense of larceny of money

from Central Fidelity Bank likewise occurred in Hanover County.

Lacking such proof, the Commonwealth failed to prove that the

larceny occurred within the trial court's jurisdiction.

The conviction is reversed, and the indictment is dismissed.

Reversed and dismissed.

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