Larwan Badru Bonner v. Commonwealth of Virginia
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VIRGINIA:
PUBLISHED
In the Court of Appeals of Virginia on Tuesday
the 5th day of February, 2013.
Larwan Badru Bonner,
against
Appellant,
Record No. 0565-11-2
Circuit Court Nos. CR10000148-00 through CR10000148-02
Commonwealth of Virginia,
Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Felton, Judges Elder, Frank, Humphreys, Kelsey, Petty, Beales, Alston, McCullough,
Huff and Chafin
On December 21, 2012 came the appellee, by the Attorney General of Virginia, and filed a petition
requesting that the Court set aside the judgment rendered herein on December 11, 2012, and grant a rehearing
en banc on the issue raised in the petition.
On consideration whereof, the petition for rehearing en banc is granted with regard to the issue raised
therein, the mandate entered herein on December 11, 2012 is stayed pending the decision of the Court en
banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35(b). The appellant shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file twelve additional copies of the appendix
previously filed in this case. In addition, any party represented by counsel shall file twelve electronic copies
of their brief (and the appendix, if the party filing the appendix is represented by counsel) with the clerk of
this Court. The electronic copies must be filed on twelve separate CDs or DVDs and must be filed in Adobe
Acrobat Portable Document Format (PDF).1
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
1
The guidelines for the creation and submission of a digital brief package can be found at
www.courts.state.va.us, in the Court of Appeals section under “Resources and Reference Materials.”
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PUBLISHED
COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Huff
Argued at Richmond, Virginia
LARWAN BADRU BONNER
v.
OPINION BY
JUDGE ROBERT J. HUMPHREYS
DECEMBER 11, 2012
Record No. 0565-11-2
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY
Sam Campbell, Judge
Charles C. Cosby, Jr., for appellant.
Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli, II,
Attorney General, on brief), for appellee.
Larwan Badru Bonner (“Bonner”) was convicted in the Circuit Court of Brunswick
County (“trial court”) for altering the serial number of a firearm in violation of Code
§ 18.2-311.1, using threatening language over the phone in violation of Code § 18.2-427, and
possession of a firearm by a convicted felon in violation of Code § 18.2-308.2.1 On appeal, he
contends that the trial “court erred in denying [his] motion to strike the [Code] § 18.2-311.1
charge involving the absence of a serial number due to improper venue.” Because we find that
the Commonwealth did not properly establish venue for this charge, we reverse the conviction,
and remand the case for a new trial in a proper venue if the Commonwealth is so advised.
I. Background
On October 29, 2009, Bonner, a resident of Dinwiddie County, called E.S. and demanded
that she repay him $70 that he had paid for dinner the night before. During the phone call,
1
This appeal only involves a challenge to the conviction under Code § 18.2-311.1 for
altering the serial number of a firearm. The remaining convictions for violating Code
§§ 18.2-308.2 and -427 are not before this Court.
Bonner was loud and angry, and he threatened to “‘F’ [E.S.] and everybody else in the house
up.” At the time of the call, E.S. was in a house in Brunswick County with her three children,
the father of her children, and his mother, father, and grandmother. After the call ended, E.S.
contacted the police, and together, they set up a meeting between E.S. and Bonner at the Davis
Truck Stop in Brunswick County.
Meanwhile, Bonner met Brian Wyatt (“Wyatt”) and his girlfriend, Diane Branzelle
(“Branzelle”), at Wyatt’s house.2 Together, the three of them drove to Bonner’s house in
Dinwiddie County and then to the Davis Truck Stop. Bonner informed Branzelle and Wyatt that
they needed to wait at the Davis Truck Stop, because he was going to pick up some money from
the father of E.S.’s children. While they were waiting, Branzelle leaned forward and noticed that
Bonner had his arm rested on a handgun that was wedged between his seat and the center
console of the car.
Eventually, the police arrived at the Davis Truck Stop and arrested Bonner. Incident to
the arrest, they recovered the handgun from the vehicle. The police observed that the serial
number of the gun was filed down and rendered unreadable.
There was no testimony as to how or where the serial number had been filed down.
Instead, the only testimony at trial regarding the gun was that E.S. had seen Bonner with the gun
on September 18 at his home in Dinwiddie. However, she was unsure whether the serial number
had been removed from the gun at that point. Additionally, Branzelle testified that she had seen
the gun on a different occasion, which was prior to October 29, 2009, and it did not have a serial
number on it at that point. Branzelle did not testify as to the location of that instance.
At trial, Bonner moved to strike the charge of altering the serial number of a firearm,
arguing that the Commonwealth had not met its burden in establishing that venue for the charge
2
The record is silent as to the location of Wyatt’s house.
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was proper in Brunswick County. The trial court denied his motion to strike, and subsequently
found him guilty of the offense. Bonner then noted this appeal.
II. Analysis
When an appeal involves an issue of venue, we review the record “to determine ‘whether
the evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to
support the [trial court’s] venue findings.’” Foster-Zahid v. Commonwealth, 23 Va. App. 430,
442, 477 S.E.2d 759, 765 (1996) (quoting Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d
599, 604 (1990)). In a criminal prosecution, it is the Commonwealth’s burden to establish
venue. Pollard v. Commonwealth, 220 Va. 723, 725, 261 S.E.2d 328, 330 (1980). “The
Commonwealth may prove venue by either direct or circumstantial evidence. In either case, 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) (quoting Pollard, 220 Va. at 725, 261 S.E.2d at 330).
While the General Assembly has created specific venue provisions for some offenses, see
e.g. Code §§ 18.2-115, 18.2-118, 18.2-178, 18.2-186, 18.2-326, altering the serial number of a
firearm under Code § 18.2-311.1 is not one of them. Therefore we must look to Code
§ 19.2-244, the general venue statute in the Commonwealth, for the venue requirements
applicable to the offense involved in this case. Code § 19.2-244 states in relevant part “[e]xcept
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.” “Application of this statute requires a determination
of where a specific crime was ‘committed.’ This determination is straightforward when the
crime is a discrete act.” Kelso v. Commonwealth, 282 Va. 134, 137, 710 S.E.2d 470, 472
(2011).
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In other words, venue for prosecution ordinarily lies where one or more elements of the
offense charged took place. Furthermore, when a crime constitutes a continuing offense, venue
may be proper in more than one jurisdiction. See Thomas v. Commonwealth, 38 Va. App. 319,
324, 563 S.E.2d 406, 409 (2002).
“A continuing offense is a continuous, unlawful act or series of
acts set on foot by a single impulse and operated by an
unintermittent force, however long a time it may occupy. Where
such an act or series of acts runs through several jurisdictions, the
offense is committed and cognizable in each.”
Id. (quoting United States v. Midstate Horticultural Company, 306 U.S. 161, 166 (1939)).
Larceny, for example, is a continuing offense, and thus, venue is proper for any jurisdiction in
which the thief transports or possesses the stolen goods. Doane v. Commonwealth, 218 Va. 500,
502, 237 S.E.2d 797, 798 (1977); see also Gheorghiu v. Commonwealth, 280 Va. 678, 685, 701
S.E.2d 407, 411 (2010) (“We have identified larceny as a continuing offense for venue purposes
based on the common law legal fiction that each time the stolen goods are taken into a new
jurisdiction, there is an illegal asportation and a new crime is committed, thereby allowing
prosecution for the larceny in any jurisdiction to which the goods were taken.”).
While not conceding the point, the Commonwealth argues that even if the record is silent
as to the specific location where the serial number on the weapon was defaced, nevertheless
venue was proper in Brunswick County because a violation of Code § 18.2-311.1 constitutes a
continuing offense and the record is clear that Bonner possessed the weapon in that county. The
Commonwealth’s argument, in essence, is that, since the alteration of a serial number allows the
possessor of the weapon potentially to use the weapon in committing other crimes without fear
of the weapon being traced back to him, the offense is continuing in nature. We disagree. Code
§ 18.2-311.1 states, in relevant part, that
[a]ny person, . . . who . . . intentionally removes, defaces, alters,
changes, destroys or obliterates in any manner or way or who . . .
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causes to be removed, defaced, altered, changed, destroyed or
obliterated in any manner or way the name of the . . . serial number
. . . on any pistol . . . shall be guilty of a Class 1 misdemeanor.
Unlike the asportation element of larceny, there is no element of Code § 18.2-311.1 that
is ongoing in nature such as to permit a similar legal fiction that a new offense has occurred in
every jurisdiction in which the weapon is possessed. Under the plain language of the statute, the
offense is complete once the person tampers with the serial number of the firearm in the manner
or to the extent proscribed by the statute. Thus, the offense constitutes a discrete act rather than a
continuing offense.
The Commonwealth argues that this construction of the venue requirements for Code
§ 18.2-311.1 will make prosecution more difficult when the location of alteration is unknown.
Whatever the policy merits of the Commonwealth’s argument, it is best addressed by the General
Assembly. This Court must follow the plain meaning of the statute and may not rewrite it.
“The duty of this court is not to make law, but to construe it; not to
wrest its letter from its plain meaning in order to conform to what
is conceived to be its spirit, in order to subserve and promote some
principle of justice and equality which it is claimed the letter of the
law has violated. It is our duty to take the words which the
legislature has seen fit to employ and give to them their usual and
ordinary signification, and having thus ascertained the legislative
intent, to give effect to it, unless it transcends the legislative power
as limited by the Constitution.”
Temple v. Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 359 (1944) (quoting Commonwealth v.
Sanderson, 170 Va. 33, 38-39, 195 S.E. 516, 519 (1938)).
Since Code § 18.2-311.1 does not constitute a continuing offense, we now turn to the
issue of whether the trial court erred in finding the Commonwealth met its burden in establishing
a strong presumption that the offense was committed in Brunswick County. The record indicates
that both E.S. and Branzelle had seen Bonner with the gun on different occasions prior to the
night he was arrested. E.S. testified that at that previous occasion, Bonner had the gun with him
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at his house in Dinwiddie County. Branzelle, on the other hand, did not indicate the jurisdiction
in which she had previously seen the gun, but she testified that the serial number had already
been removed. On the night of his arrest, Bonner drove with Branzelle and Wyatt from Wyatt’s
house to Bonner’s house in Dinwiddie County before proceeding to the Davis Truck Stop in
Brunswick County. There was no testimony that Bonner altered the serial number in any manner
during that trip; rather, Branzelle testified only that she noticed the gun when she leaned forward
and saw the gun wedged between the seat and console. Combined with Branzelle’s other
testimony, it is clear that Bonner had altered the serial number prior to the trip. As Bonner lives
in Dinwiddie County, and the record only indicates that he entered Brunswick County in order to
confront E.S., there is no evidence whatsoever in the record before us that Bonner removed the
serial number of the gun in Brunswick County.
The dissent concedes that the serial number may have been altered outside of Brunswick
County, but nevertheless reaches the conclusion that venue is proper in this case because “the
direct and immediate impact of the offense occurred in Brunswick” County. We reject this
theory because if we were to accept this principle as broadly as the dissent does, the general
venue statute found in Code § 19.2-244 would be unnecessary. Carried to its logical conclusion,
the test for venue for any criminal offense would be proper in any jurisdiction regardless of
where the elements of the offense were actually committed so long as one can point to some
“direct and immediate impact” of the offense in that jurisdiction.
In support of its position, the dissent relies primarily upon two cases: Gregory v.
Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff’d, 237 Va. 354, 377 S.E.2d 405
(1989), and Foster-Zahid, 23 Va. App. 430, 477 S.E.2d 759. However, these cases are easily
distinguishable from, and inapplicable to, this case. In Gregory, the appellant was convicted of
unlawfully and feloniously removing a tractor and trailer from the state upon which there was a
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lien and disposing of it without the written consent of the lienor in violation of Code § 18.2-115.
That statute included a specific provision for venue. Specifically, “Code § 18.2-115 . . .
provide[d] that: ‘[t]he venue of prosecutions against persons fraudulently removing any such
property, including motor vehicles, from the State shall be the county or city in which such
property or motor vehicle was purchased or in which the accused last had a legal residence.’”
Gregory, 5 Va. App. at 92, 360 S.E.2d at 860 (quoting Code § 18.2-115). As the appellant’s last
legal residence was in the jurisdiction where the charge was instituted, this Court found that
venue was proper and the Supreme Court affirmed that decision. Gregory, 237 Va. 354, 377
S.E.2d 405.
The dissent focuses on part of our reasoning from that case: “‘[i]t has long been a
commonplace of criminal liability that a person may be charged in the place where the evil
results, though he is beyond the jurisdiction when he starts the train of events of which the evil is
the fruit.’” Gregory, 5 Va. App. at 94, 360 S.E.2d at 861 (quoting Travelers Health Assoc. v.
Commonwealth, 188 Va. 877, 892, 51 S.E.2d 263, 269 (1949)). However, the dissent fails to
consider that this offense involved a crime where elements of the offense occurred outside of the
state and the statute specifically provided that venue existed in a location other than where the
crime occurred.3 “‘[I]n the absence of a constitutional limitation, it is generally held that the
Legislature has power to fix the venue of criminal prosecutions in a county or district other than
that in which the crime was committed.’” Foster-Zahid, 23 Va. App. at 442, 477 S.E.2d at 765
(quoting Howell v. Commonwealth, 187 Va. 34, 40-41, 46 S.E.2d 37, 40 (1948)). As already
3
The General Assembly can certainly authorize prosecution of an offense that occurs in
part outside of the Commonwealth’s territorial borders when its effects are felt within the
Commonwealth. Such authority is inherent in a state’s sovereign power. However, this is a
wholly different issue than venue, which is simply the concept of the legally proper place where
a particular case should be filed and disposed of.
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noted, the legislature included no specific venue provision applicable to Code § 18.2-311.1,
therefore the holding of Gregory is inapplicable to this case.
In Foster-Zahid, the appellant was convicted of custodial interference in violation of
Code § 18.2-49.1(A). That statute criminalizes the withholding of the child from the custodial
parent, and thus, the offense is necessarily committed where the custodial parent resides.
Therefore, in Foster-Zahid we held “[u]nder Code § 18.2-49.1(A), the General Assembly clearly
provided that venue exists where the crime of custodial interference occurred, i.e., where the
harm resulted as a direct and immediate consequence of the violation of the court order.” Id. As
a result, we held that venue was proper where the custodial parent resided since that is the
location at which the child was withheld from the custodial parent. Code § 18.2-311.1 is
distinguishable from Code § 18.2-49.1(A) in that in this case, the crime, and thus the harm, is
complete when and where the serial number of the firearm has been altered. At that point, any
attempt to identify the firearm by its serial number has been impeded. Thus, Foster-Zahid does
not control our holding today. While the dissent is certainly correct that a firearm with an altered
or defaced serial number may be used to commit other offenses that themselves result in direct
and immediate consequences in other jurisdictions throughout the Commonwealth, the
legislative scheme currently contemplates that each charged offense is subject to an
individualized determination of venue.
III. Conclusion
For the reasons stated, we hold that the trial court erred in concluding that the evidence
was sufficient to establish that venue was proper in Brunswick County. We therefore reverse
Bonner’s conviction for altering the serial number of a firearm in violation of Code § 18.2-311.1
and remand this case to the trial court for further proceedings including a new trial in a circuit
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court with geographical jurisdiction over the trial of this offense if the Commonwealth be so
advised.
Reversed and remanded.
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Frank, J., dissenting.
I respectfully dissent and believe venue was proper in Brunswick County.
Application of Code § 19.2-244 requires a determination of where a specific crime was
“committed.” This determination is straightforward when the crime is a discrete act. For
example, rape is a discrete act which when completed constitutes the commission of the crime.
However, a crime committed in one jurisdiction may have a direct and immediate result
in another jurisdiction. Gregory v. Commonwealth, 237 Va. 354, 355, 377 S.E.2d 405, 406
(1989); see also United States v. Blecker, 657 F.2d 629, 632 (4th Cir. 1981) (explaining that
when a statute defining a substantive offense does not indicate where the place of committing the
crime is to be, the locus delicti must be determined from the nature of the crime alleged and the
location of the act or acts constituting it).
In Gregory v. Commonwealth, 5 Va. App. 89, 360 S.E.2d 858 (1987), aff’d, 237 Va. 354,
377 S.E.2d 405 (1989), Gregory obtained a loan from a bank, which was secured by a lien on his
tractor trailer. The loan agreement prohibited Gregory from selling the vehicle without the
bank’s consent. Gregory sold the trailer in another state after it broke down. He was charged
with fraudulently selling the vehicle pursuant to Code § 18.2-115 and tried for the offense in
Botetourt County, Virginia. Id. at 91, 360 S.E.2d at 859.
Gregory argued the offense was completed outside of the Commonwealth. We held the
evil that Code § 18.2-115 sought to prevent, i.e., the economic injury to the lienholder by
removing the secured property from the Commonwealth and thus preventing the lienholder from
enforcing the lien, occurred in Botetourt County. Id. at 94, 360 S.E.2d at 861. ‘“It has been a
commonplace of criminal liability that a person may be charged in the place where the evil
results, though he is beyond the jurisdiction when he starts the train of events of which the evil is
the fruit.”’ Id. (quoting Travelers Health Assoc. v. Commonwealth, 188 Va. 877, 892, 51 S.E.2d
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263, 269 (1949)). “Where harm is caused in Virginia by criminal acts partially committed within
this Commonwealth, such acts can be prosecuted here.” Id.
The majority attempts to distinguish Gregory. We agree that Code § 18.2-115 provides
that venue “shall be the county or city in which said property or motor vehicle was purchased or
in which the accused last had a legal residence.” However, I find Gregory persuasive. The
statutory venue language and the Gregory opinion underscore the concept that “a person may be
charged in the place where evil results.” 5 Va. App. at 94, 360 S.E.2d at 861.
Foster-Zahid v. Commonwealth, 23 Va. App. 430, 477 S.E.2d 759 (1996), is also
instructive. The mother, pursuant to a custody/visitation order of the Fairfax Juvenile and
Domestic Relations District Court, had visitation with her son in Wisconsin. Id. at 434, 477
S.E.2d at 761. She failed to return the child as agreed, and ultimately absconded with him to
California. Appellant was charged with parental abduction and tried in Fairfax. Id. at 435, 477
S.E.2d at 761.
The issue was whether Fairfax was the proper venue. We held that it was.
The gravamen of the offense is the withholding of the child from
the custodial parent outside the Commonwealth. The clear intent
of the statute is to punish more severely those who withhold a child
from its rightful custodian when the detention is accomplished
outside of Virginia, thereby further restricting the custodial
parent’s ability to retrieve the child.
Id. at 437, 477 S.E.2d at 762 (emphasis omitted). Citing Gregory, we held that appellant’s
failure to return the child to the custodial parent in Fairfax produced the harm the statute
intended to prevent. Id. at 440, 477 S.E.2d at 764.
It is interesting to note in Foster-Zahid, we cited Gregory to support the conclusion that
the evil occurred in the Commonwealth by “further restricting the custodial parent’s ability to
retrieve the child.” Foster-Zahid, 23 Va. App. at 437, 477 S.E.2d at 762. If the Gregory decision
was limited to the statutory venue language, as the majority suggests, Gregory would have no
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bearing on Foster-Zahid. Again, the majority seeks to distinguish Foster-Zahid as it must. The
majority contends that Code § 18.2-311.1 is distinguishable from Code § 18.2-49.1(A)4 in that
the harm, and thus the crime, is complete once the serial number of the firearm had been altered.
I disagree. The fact that the crime has been completed is not relevant to an analysis of where the
evil occurred. In Gregory, the offense was complete when the perpetrator sold the trailer in
another state. In Foster-Zahid, the offense was complete when the defendant withheld the child
out of state.
I find the purpose behind prohibiting the alteration or obliteration of a serial number on a
weapon instructive. A serial number identifies the weapon. By obscuring that number, one
obscures the identification of the weapon and the owner. The number serves law enforcement
interest by enabling them to trace and identify the owner and source.
As the United States Court of Appeals found in United States v. Marzzarella, 614 F.3d 85
(3d Cir. 2010):
Firearms without serial numbers are of particular value to those
engaged in illicit activity because the absence of serial numbers
helps shield recovered firearms and their possessors from
identification. Their prevalence, therefore, makes it more difficult
for law enforcement to gather information on firearms recovered in
crimes. Accordingly, preserving the ability of law enforcement to
conduct serial number tracing – effectuated by limiting the
availability of untraceable firearms – constitutes a substantial or
important interest.
Id. at 98 (citation omitted).
4
Code § 18.2-49.1(A) provides:
Any person who knowingly, wrongfully and intentionally
withholds a child from either of a child’s parents or other legal
guardian in a clear and significant violation of a court order
respecting the custody or visitation of such child, provided such
child is withheld outside of the Commonwealth, is guilty of a Class
6 felony.
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Here, appellant telephoned E.S. threatening to “F--- [her] up” and telling her that
everyone in her house was “going to be in a body bag.” Appellant had fired a gun within the last
month in E.S.’s presence, and she was afraid he would keep his deadly threat. Appellant
believed E.S. would meet him at the gas station, and he armed himself with a weapon with the
serial number removed.
Appellant had threatened to commit murder. By eliminating the serial number, appellant
effectively hampered any ensuing police investigation. Further, appellant is a convicted felon
and his possession of a weapon is a separate felony offense. By removing the serial number,
appellant made it more difficult for the weapon to be traced to him. See Marzzarella, 614 F.3d at
98 (discussing the substantial law enforcement interest in enabling weapons tracing via serial
numbers). While obliteration of the serial number may have occurred outside of Brunswick, the
evil Code § 18.2-311.1 sought to prevent occurred in Brunswick because several gun-related
offenses occurred there necessitating an investigation in that county. Thus, the direct and
immediate impact of the offense occurred in Brunswick and the trial court correctly found venue
was proper in that county.
I would conclude there was sufficient evidence to give rise to a “strong presumption” that
venue was proper in Brunswick County and would affirm the judgment of the trial court.
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