Virginia woman, convicted of embezzlement, has conviction overturned on appeal

Joker

Filed:

                    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,
, 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
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
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,
, 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
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.