                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


ERNIE CLARENCE SWAIN, S/K/A
 CLARENCE E. SWAIN, III
                                         MEMORANDUM OPINION * BY
v.   Record No. 2430-99-1                 JUDGE RICHARD S. BRAY
                                            OCTOBER 31, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    Dean W. Sword, Jr., Judge

          S. Jane Chittom, Appellate Counsel (Elwood
          Earl Sanders, Jr.; Public Defender
          Commission, on briefs), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Clarence E. Swain, III (defendant) was convicted in a bench

trial of unlawful wounding, a violation of Code § 18.2-51.    On

appeal, he complains the court erroneously 1) acted without the

requisite subject matter jurisdiction; 2) imposed a duty to

retreat upon him; 3) misconstrued the evidence; and 4) convicted

him upon insufficient evidence.   For the following reasons, we

reverse the trial court.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

                                I.

     Code § 19.2-239 confers jurisdiction on the respective

circuit courts of this Commonwealth for "all presentments,

indictments and informations for offenses committed within their

respective circuits."   Code § 19.2-239.    Thus, a "criminal

charge cannot be sustained unless the evidence furnishes the

foundation for a 'strong presumption' that the offense was

committed within the jurisdiction of the court."      Keesee v.

Commonwealth, 216 Va. 174, 175, 217 S.E.2d 808, 809-10 (1975).

"The burden is on the Commonwealth to prove venue by evidence

which is either direct or circumstantial."      Id. at 175, 217

S.E.2d at 809.

     "'Questions of venue must be raised before the verdict in

cases tried by a jury and before the finding of guilt in cases

tried by the court without a jury.'     Code § 19.2-244.   Otherwise

the question of venue is waived."      Sutherland v. Commonwealth, 6

Va. App. 378, 380, 368 S.E.2d 295, 297 (1988).     When venue is

challenged on appeal, we determine "whether the evidence, when

viewed in the light most favorable to the Commonwealth, is

sufficient to support the [trial court's] venue findings."

Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604

(1990).

                               - 2 -
     Here, defendant did not object to venue before the finding

of guilt and, therefore, clearly waived the objection.     However,

because a court must have subject matter jurisdiction to

properly adjudicate an issue and "objections to subject-matter

jurisdiction may be raised at any time and are not waivable,"

Owusu v. Commonwealth, 11 Va. App. 671, 672, 401 S.E.2d 431, 431

(1991), defendant couches his venue challenge on appeal in the

more substantive issue of subject matter jurisdiction. 1

     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 [gives] cognizance."   Shelton v. Sydnor,

126 Va. 625, 630, 102 S.E. 83, 85 (1920).   The instant

prosecution is clearly among a "class" of cases within the

subject matter jurisdiction of the circuit courts of the

Commonwealth, provided the offense was committed inside her

boundaries.   If not, the question of venue within a particular

circuit is moot.   Like venue, subject matter jurisdiction may be

proven by direct or circumstantial evidence that indicates the




     1
       "One consequence of the non-waivable nature of the
requirement of subject matter jurisdiction is that attempts are
sometimes made to mischaracterize other serious procedural
errors as defects in subject matter jurisdiction to gain an
opportunity for review of matters not otherwise preserved."
Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 756
(1990).


                               - 3 -
crime occurred in the Commonwealth.       Owusu, 11 Va. App. at 672,

401 S.E.2d at 432.

     Although the instant record provides no direct evidence

that the crime occurred within the Commonwealth or, more

specifically, the City of Portsmouth, sufficient evidence

otherwise established the requisite jurisdiction.       See West v.

Commonwealth, 125 Va. 747, 752, 99 S.E. 654, 655 (1919) (finding

circumstantial evidence sufficient to establish venue).      The

indictment recited defendant committed the alleged offense "in

the City of Portsmouth."    The victim testified that the initial

encounter with defendant occurred at the "Cradock Luncheonette,"

located on Afton Parkway.   Within minutes, the victim again

confronted defendant, prompting the offending incident at 40

Burtis Street, "near Afton Parkway," a location defendant

testified, "You are familiar with . . . if you live in

Portsmouth.   It's in Cradock."    At trial, defendant did not

raise either the issue of jurisdiction or venue.      Such

circumstances sufficiently established the requisite presumption

that the offense occurred both within the Commonwealth and the

City of Portsmouth.

     Defendant's reliance upon Owusu for a different result is

misplaced.    There, the record made no mention of "street

address, town, or locality" in locating the crime.      Thus,

jurisdiction within the Commonwealth was unproven, an issue

"further confused" by evidence that Owusu had been arrested

                                  - 4 -
. . . in Maryland."     Id. at 673, 401 S.E.2d at 432.   In

contrast, both defendant and victim described the location of

the instant crime by street name and area, "Cradock," expressly

relating Cradock to Portsmouth.

                                  II.

     The trial judge, in announcing his ruling, observed that

the victim had inappropriately "purs[ed] [defendant], chas[ed]

him around trying to throw a bicycle at him."    Nevertheless, the

court concluded that "the whole thing could have been avoided by

[defendant] high footing it out of there and instead of doing

that [defendant] armed himself deliberately."    However, if

defendant was "completely without fault" in precipitating the

violent confrontation, he was under no duty to retreat but,

rather, free "to stand his ground and repel the attack by

force."   Foote v. Commonwealth, 11 Va. App. 61, 67, 396 S.E.2d

851, 856 (1990).   Thus, assuming the factual predicate recited

by the court, the victim, not defendant, was the aggressor, a

circumstance with abundant support in the record, and defendant

was not required to flee before defending himself.

     "[A] correct statement of the law is one of the 'essentials

of a fair trial.'"    Talbert v. Commonwealth, 17 Va. App. 239,

244-45, 436 S.E.2d 286, 289 (1993) (quoting Darnell v.

Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988)

(citations omitted)).    On the instant record, we cannot find

that "'it plainly appears . . . that [defendant] had a fair

                                 - 5 -
trial on the merits and substantial justice has been reached'"

and, therefore, must reverse the conviction.    Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc) (quoting Code § 8.01-678).

                                III.

     "Notwithstanding the fact that we reverse [the instant

conviction], we address [defendant's] sufficiency of the

evidence argument because the Commonwealth would be barred on

double jeopardy grounds from retrying [defendant] if we were to

reverse for insufficiency of the evidence."    Timbers v.

Commonwealth, 28 Va. App. 187, 202, 503 S.E.2d 233, 240 (1998).

"When the sufficiency of the evidence is challenged on appeal,

we determine whether the evidence, viewed in the light most

favorable to the prevailing party, and the reasonable inferences

fairly deducible from that evidence support each and every element

of the charged offense.'"   Cottee v. Commonwealth, 31 Va. App.

546, 554-55, 525 S.E.2d 25, 29 (2000).

     The record discloses that defendant and Tammy Jordan, while

seated at the Cradock Luncheonette, were approached by the

victim.   Defendant had previously rented an apartment from the

victim, and he inquired into the whereabouts of a stolen air

conditioning unit.   When the victim demanded the "F'ing air

conditioner" from defendant, defendant "just laughed" and exited

the restaurant, remarking to Jordan, "[w]e can't eat here."



                               - 6 -
     The victim persisted, however, and, within ten to fifteen

minutes, again confronted defendant on a nearby street.

Approaching to within "about 10 inches" of defendant, he "asked

[defendant] where was [the] air conditioner."   The victim

recalled, "the next thing I know, I was on the ground,

[defendant] hit me in the head with a stick."   "[D]azed," the

victim "picked . . . up" defendant's bicycle and "threw it at

[defendant]," prompting defendant to flee, threatening to "get

his gun and shoot" him.   Such evidence, if believed by the fact

finder, is sufficient to support the subject conviction of

defendant for unlawful wounding.

     Accordingly, for the reasons stated, we reverse the

conviction and remand for a new trial, if the Commonwealth be so

advised. 2

                                         Reversed and remanded.




     2
       Because the remaining issues are unlikely to arise upon
retrial, we decline to address them.


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