                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia


DEAN DOBSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 0733-96-2               JUDGE JAMES W. BENTON, JR.
                                            FEBRUARY 18, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CHARLES CITY COUNTY
                   Samuel Taylor Powell, III, Judge
           C. Thomas Turbeville (Dansby & Turbeville, on
           brief), for appellant.

           Michael T. Judge, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      Dean Dobson was convicted of assault and battery.     On

appeal, he contends that the record failed to prove that the

incident that led to his conviction occurred within the circuit

court's jurisdiction and that the evidence was insufficient to

uphold the jury's verdict.    Because the record failed to prove by

direct or circumstantial evidence that the incident occurred in

the Commonwealth, we reverse the conviction and remand the case.

      This case comes to this Court upon a written statement of

facts.    See Rule 5A:8(c).   In pertinent part, the statement

recites that at midnight on February 4, 1996, a deputy sheriff

went to an address in Charles City County and spoke to Bonita

Monroe outside Dobson's residence.    He observed that Monroe had

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
swelling about her cheeks and eyes and that she had bandages over

cuts in her wrists.   Monroe said that she had cut her wrists.

     The deputy sheriff went inside the residence and spoke with

Dobson.    Dobson, who had been drinking and appeared angry, began

to verbally abuse the deputy sheriff.   The deputy sheriff

arrested Dobson.   The deputy sheriff testified that at the

magistrate's office Dobson made statements, including "I should

have killed her" and "Next time, I'll punch her in the eye

again."
     As a defense witness, Monroe testified that she had tried to

cut her wrists and that she and Dobson had argued about her

attempt to cut her wrists.   She testified that Dobson had not

struck her, that she had no physical injuries other than her cut

wrists, and that her eyes had swollen because she had been

crying.    Monroe also denied telling the deputy sheriff that

Dobson had hit her.   On rebuttal, the deputy sheriff testified

that Monroe told him that Dobson had struck her several times.

     On this evidence, a jury convicted Dobson of assault and

battery.    In Owusu v. Commonwealth, 11 Va. App. 671, 673, 401

S.E.2d 431, 432 (1991), this Court reiterated the long standing

principle "that subject matter jurisdiction 'must affirmatively

appear on the face of the record, that is, the record must show

affirmatively that the case is one of a class of which the court

rendering the judgment was given cognizance.'"   (Citation

omitted).   We also recognized an equally well established




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principle that a challenge to the circuit court's subject matter

jurisdiction may be raised at any time.       See id. at 672, 401

S.E.2d at 431.

     Neither the direct evidence nor the circumstantial evidence

proved the place where the assault occurred.      No evidence proved

that it occurred at or near Dobson's residence.      "No street

address, town, or locality was mentioned with respect to the

location of the offense[]."      Id.   Furthermore, no evidence tended

to prove whether it occurred several hours or merely a few

minutes before the deputy sheriff arrived at Dobson's residence.

Moreover, we have recognized that "[t]he mere fact that police

of a certain jurisdiction investigate a crime cannot support an

inference that the crime occurred within their jurisdiction."
Sutherland v. Commonwealth, 6 Va. App. 378, 382, 368 S.E.2d 295,

297 (1988).

     We hold, therefore, that the evidence in this record failed

to prove where the assault occurred -- whether in Charles City

County, in an adjoining jurisdiction, or even within the
                            1
Commonwealth of Virginia.       Accordingly, we must reverse the

conviction on that ground.      See Owusu, 11 Va. App. at 673-74, 401

S.E.2d at 432.   However, we do not reverse the conviction on

Dobson's claim that the evidence was insufficient to support the
     1
      Our holding is not based solely on the failure of the
Commonwealth to prove that the crime occurred in Charles City
County. That is a question of venue. The issue raised by this
appeal concerns jurisdiction. The statement of facts does not
show that the incident occurred in Virginia.



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conviction.   Because the jury was required to make a credibility

determination in resolving the disputed testimony of the deputy

sheriff and Monroe concerning whether Dobson struck Monroe, we

cannot say as a matter of law that the evidence was insufficient

to support the conviction.   See Bridgeman v. Commonwealth, 3 Va.

App. 523, 528, 351 S.E.2d 598, 601 (1986).

     The parties agree that the appropriate remedy is to remand

this case for further proceedings.     See also Owusu, 11 Va. App.

at 674, 401 S.E.2d at 432.
                                           Reversed and remanded.




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