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. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 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. 
 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). 

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 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). 

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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 

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. . . 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 

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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." 

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 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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