11.1 Venue and Change of Venue

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

11.1 VENUE AND CHANGE OF VENUE

11.101 Venue.

A. General Rule. The place of a criminal trial in Virginia is generally in the county or city where the offense was committed. If venue cannot be readily determined, prosecution may be in the jurisdiction in which the defendant resides, or if the defendant is not a resident, in the jurisdiction in which he or she is arrested, or, if the defendant is not a resident and is not arrested in the commonwealth, in the jurisdiction in which any related offense was committed. ¹

B. Statutory Special Venue. Some crimes in Virginia have statutory provisions for special venue that specify and limit where the offense may be prosecuted. To ascertain whether venue is proper, counsel should determine whether the offense charged is governed by any statutory special venue provisions. Many of those provisions are set out in section 19.2-244 et seq. Counsel should also look at the Virginia Code section that defines the specific offense charged along with the surrounding provisions, as they may contain definitions that affect the application of the general rule described in paragraph 11.101(A) above. Examples of offenses that have special venue by statute include:

1. Forgery. Forgery may be prosecuted where the writing was forged or where it was used, passed, attempted to be used or passed, or deposited or placed either for collection or credit or where the writing is found in the possession of the defendant. ²

2 Tax Offenses. Tax offenses may be prosecuted where the offender resides or where the false or fraudulent tax document was filed,

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except that filing with the Department of Taxation does not alone justify venue in the City of Richmond. ³

3. Credit Card Theft. Credit card theft must be prosecuted where the theft is completed—where the card or number is unlawfully taken from its rightful owner or is received with knowledge that it has been taken and with the intent to use it, sell it, or transfer it, but not in those jurisdictions to where the card is taken after the offense of the theft is complete. The location where the card is used is not the proper venue for prosecution of credit card theft. ⁴

4. Homicide. Homicide can be prosecuted either where the mortal wound is inflicted or where death ensues, if they are different counties or cities, ⁵ or, in some circumstances, where the victim was taken for treatment or where the body or any body part may be found. ⁶

5. Altering the Serial Number of a Firearm. Altering the serial number of a firearm is a discrete act and is completed once the person tampers with the serial number. Proper venue lies only where the alteration took place and not in other localities into which the firearm was taken. ⁷

6. Computer Crimes and Unlawfully Creating an Image of Another. Section 19.2-249.2 provides that for the purpose of venue, any violation of the Virginia Computer Crimes Act ⁸ or prosecution for unlawfully creating an image of another pursuant to section 18.2-386.1 is considered to have been committed in any county or city: (i) in which any act was performed in furtherance of any course of conduct; (ii) in which the owner has his or her principal place of business in the commonwealth; (iii) in which any offender had control or possession of any proceeds of the violation or of any books, records, documents, property, financial instrument, computer software, computer program, computer data, or other material or objects that were used in furtherance of the violation; (iv) from which, to which, or through which any access to a computer or computer network was made whether by wires, electromagnetic waves, microwaves, optics, or any other

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means of communication; (v) in which the offender resides; or (vi) in which any computer that is an object or an instrument of the violation is located at the time of the alleged offense.

C. Offenses Committed Wholly or Partially Outside the Commonwealth, City, or County. When the offense is committed wholly or partially outside Virginia, prosecution may occur in any county or city where the offender is found or to which he or she is sent by any judge or court. When a person commits larceny or embezzlement outside Virginia and brings the stolen property into Virginia, he or she may be tried in any county or city in Virginia into which he or she has brought the stolen property. ⁹ If the larceny or embezzlement is committed in Virginia, and the property is taken into another county or city, the offender may be prosecuted in the county or city where the property is taken. ¹⁰

If a mortal wound or other violence or injury is inflicted by a person in Virginia upon someone outside Virginia or upon someone in Virginia who later dies outside of Virginia from the effect, the offender is subject to prosecution and punishment for the offense in the city or county where he or she was at the time of the commission. ¹¹ Where evidence exists that a homicide has been committed either inside or outside Virginia under circumstances that make it unknown where the crime was committed, the homicide and any related offense may be prosecuted in the courts of the county or city where the body of the victim is found. ¹² If the victim of a homicide was removed from the commonwealth for medical treatment before death and died outside the commonwealth, venue lies in the court of the county or city from which the victim was removed. ¹³ In a prosecution for capital murder under section 18.2-31(8) of the Virginia Code, the offense may be prosecuted in any jurisdiction where prosecution for one of the murders could be prosecuted. ¹⁴

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D. Continuing Offenses. When the offense charged is a continuing offense, such as possession of stolen property or narcotics, venue may be proper in more than one place. ¹⁵

E. Offenses Committed Between Counties or Cities. When an offense is committed on the boundary of two counties, on the boundary of two cities, or on the boundary of a county and city, or within 300 yards thereof, the offender may be prosecuted in either of the jurisdictions. ¹⁶

F. Burden of Proof and Waiver. In criminal cases, the burden is on the Commonwealth to prove venue by either direct or circumstantial evidence. ¹⁷ The evidence must furnish a foundation for a "strong presumption" that the offense was committed within the jurisdiction of the court. ¹⁸ Furthermore, the court may take judicial notice of geographical facts that are either matters of common knowledge or shown by maps of common use, which are on the record. ¹⁹ Venue is not, however, a substantive part of the crime ²⁰ and need not be proven beyond a reasonable doubt. ²¹ An allegation of venue in an indictment is not adequate proof of venue and jurisdiction. The mere fact that police of a particular jurisdiction investigated a crime cannot support an inference that the crime was committed within that jurisdiction. ²²

The right to object to a trial in an improper venue is waived unless the objection is made before a verdict is rendered in a jury trial or before judgment in a non-jury trial. ²³ No jeopardy attaches on a case overturned for

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failing to prove...