Present: Kinser, C.J., Lemons, Goodwyn, Millette and Mims, JJ., 

and Lacy and Koontz, S.JJ.

HARRY MURPHY KELSO

OPINION BY SENIOR JUSTICE

v. Record No. 101866 ELIZABETH B. LACY

 JUNE 9, 2011

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

The dispositive issue in this appeal is whether venue in 

Hanover County was proper for the prosecution and conviction of 

Harry Murphy Kelso for three counts of causing a juvenile to 

assist in the distribution of marijuana to a third party in 

violation of Code § 18.2-255(A)(ii).

BACKGROUND

The facts are not in dispute. On three occasions in the 

spring of 2007, Hanover County Sheriff’s deputies provided a 

confidential informant $500 for the purchase of marijuana. On 

each occasion the confidential informant purchased marijuana 

from M.B. with the money provided by the deputies. M.B. was 

seventeen years of age at the time the confidential informant 

made these purchases.

On the first occasion, the confidential informant met M.B. 

in Hanover County. M.B. got into the informant’s car and they 

traveled to Kelso’s apartment in Henrico County. The informant 

waited in his vehicle while M.B. entered Kelso’s apartment and 

returned with the marijuana. M.B. and the confidential 
2

informant then traveled back to Hanover County where the 

transaction was consummated. On the two subsequent occasions, 

the informant met M.B. in Hanover County, M.B. traveled alone to 

Henrico County to meet Kelso and obtain the marijuana, and then 

returned to Hanover County to complete the sale of marijuana to 

the confidential informant. Hanover County Sheriff’s deputies

conducted surveillance of each transaction which included 

installing a camera and an audio listening device in the 

informant’s vehicle and following M.B. and the informant during 

the transactions.

The evidence further established that Kelso also sold M.B. 

a quarter-pound of marijuana each week since April of 2007 and 

that he knew M.B. was seventeen or eighteen years of age. M.B. 

testified that he began selling marijuana to friends and people 

he knew at Atlee High School in Hanover County, that he had 

smoked marijuana with Kelso and that between August 2006 and 

August 2007 he had purchased approximately fifteen pounds of 

marijuana from Kelso. Occasionally, friends from high school 

would accompany M.B. to Kelso’s apartment, however, Kelso would 

sell marijuana only to M.B., who in turn sold it to his friends.

Kelso was indicted by a multijurisdictional grand jury for 

three counts of violating Code § 18.2-255(A)(ii) and tried in 
3

the Circuit Court of Hanover County.1 At the close of the 

Commonwealth’s evidence, Kelso argued that venue in Hanover 

County was improper and the indictments should be dismissed

because there was no evidence that he was in Hanover County or 

conducted any transaction involving the distribution of drugs in

that county. The trial court disagreed, denied the motion to 

dismiss and entered judgments of conviction on each of the three 

counts. The Court of Appeals affirmed Kelso’s convictions, 

Kelso v. Commonwealth, 57 Va. App. 30, 41, 698 S.E.2d 263, 268

(2010).

DISCUSSION

Kelso argues here, as he did in the Court of Appeals and 

the trial court, that his indictments for violation of Code 

§ 18.2-255(A)(ii) should be dismissed because the evidence 

established that he did not undertake any action relating to the 

sale of marijuana in Hanover County. His distribution of 

marijuana to M.B. occurred solely in Henrico County. Because 

the prosecution of a crime must be conducted “in the county or 

city in which the offense was committed,” Code § 19.2-244, Kelso 

asserts that the indictments should have been dismissed and 

subsequent convictions should be vacated.

 1 Kelso also was indicted and convicted of conspiracy to 

distribute more than five pounds of marijuana in violation of 

Code §§ 18.2-256 and 18.2-248.1. That conviction is not the 

subject of this appeal.
4

Kelso correctly recites the general venue statute providing 

for prosecution of a crime in the county or city in which the 

crime was committed, except as otherwise provided by law. Code 

§ 19.2-244. Application of this statute requires a 

determination of where a specific crime was “committed.” This 

determination is straightforward when the crime is a discrete 

act. For example, the distribution of marijuana to a juvenile 

in violation of Code § 18.2-255(A)(i) is a discrete act which 

when completed constitutes the commission of the crime.2 Moreno 

v. Baskerville, 249 Va. 16, 18-19, 452 S.E.2d 653, 655 (1995).

The crime at issue here is a violation of subsection 

(A)(ii) of Code § 18.2-255. That subsection makes it a crime 

for any person over the age of 18 to knowingly or intentionally 

cause a person under the age of 18 to assist in the distribution 

of marijuana. This crime involves a number of actions which 

must be taken by more than one person. To secure a conviction, 

the Commonwealth must prove that the defendant not only 

knowingly or intentionally performed an act which caused the 

juvenile to assist in the distribution of the contraband, but 

also that the juvenile assisted in the actual distribution of 

 2 Code § 18.2-255(A) provides in relevant part that

[I]t shall be unlawful for any person who is at least 18 

years of age to knowingly or intentionally (i) distribute 

any drug classified in Schedule I, II, III or IV or 

marijuana to any person under 18 years of age who is at 

least three years his junior.
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the contraband to a third party. If there is no distribution to 

a third party, there is no violation of Code § 18.2-255(A)(ii). 

Furthermore, the actions of the defendant and those of the 

juvenile who assists in the distribution of the contraband may 

not always be in the same jurisdiction. 

We have addressed the issue of venue for prosecution of 

other crimes in which actions involving the commission of the 

crime occur in different places, in the absence of a special 

venue statute.3 In doing so, we have looked to the nature of the 

crime charged and the location of the acts constituting the 

crime. For example, in considering the proper venue for the 

crime of embezzlement, we acknowledged that, although venue was 

generally appropriate in the jurisdiction in which the 

conversion was consummated, such venue was not exclusive and the 

crime also could be prosecuted in the jurisdiction in which the 

perpetrator formed the intent to appropriate the goods to his 

own use. Rhodes v. Commonwealth, 145 Va. 893, 895, 134 S.E. 

 3 Although the General Assembly has enacted a number of 

statutes providing special venue provisions for crimes which may 

involve acts performed in more than one jurisdiction, no such 

statute exists for a violation of Code § 18.2-255(A)(ii). See

e.g., Code § 18.2-198.1 (offenses relating to credit cards, such 

as theft, forgery, fraud, and unauthorized possession); Code 

§ 18.2-186.3(D) (identity theft); Code § 18.2-178(B) (obtaining 

money or signatures by false pretenses); Code § 18.2-46.8 

(terrorism offenses); Code § 18.2-46 (crimes by mobs); and Code 

§ 18.2-212(B) (summoning ambulance or fire-fighting apparatus 

without just cause).
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723, 724 (1926).4 Similarly, we held that venue is proper in the 

jurisdiction where the direct and immediate result of an illegal 

act occurred, even if the illegal act causing the injury 

occurred in another jurisdiction. Gregory v. Commonwealth, 237 

Va. 354, 355, 377 S.E.2d 405, 406 (1989). See also United 

States v. Blecker, 657 F.2d 629, 632 (4th Cir. 1981) (when

statute defining substantive offense does not indicate where the 

place of committing the crime is to be, the locus delicti must 

be determined from the nature of the crime alleged and the 

location of the act or acts constituting it.)

The nature of the crime at issue here is not that of a 

“continuing crime” as in the case of a larceny. A larceny is 

deemed to be repeated every time the object of the theft is 

transported to another jurisdiction; thus the crime is 

“continuing” in nature and subject to prosecution in each venue. 

Gheorghiu v. Commonwealth, 280 Va. 678, 685, 701 S.E.2d 407, 411 

(2010). In this case we are addressing a crime in which 

different elements of a single crime occur in different

jurisdictions. As discussed above, the crime consists of more 

than one act which must be performed by more than one person. 

One of the acts which must occur for conviction of a violation 

of subsection (A)(ii) of Code § 18.2-255 is the juvenile’s 

 4 The General Assembly codified this holding in 1960 when it 

amended the predecessor to Code § 19.2-245, former Code § 19.2-

220.
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assistance in the distribution of the contraband to a third 

party. Under these circumstances, we hold that the place where 

that act occurred is an appropriate venue for prosecution. The 

record in this case is clear that the juvenile distributed the 

marijuana he received from Kelso to a third party in Hanover 

County. Therefore venue in Hanover County was proper in this 

case.

Kelso also assigned error to the Court of Appeals’ holding 

that he had waived his challenge to the “territorial 

jurisdiction” of the trial court. We need not address this 

issue in light of our holding on venue; however, we note that 

“territorial jurisdiction” and venue are synonymous and were 

used interchangeably in Porter v. Commonwealth, 276 Va. 203, 

229-30, 661 S.E.2d 415, 427-28 (2008), when contrasting venue 

jurisdiction with subject matter jurisdiction.

Finally, Kelso argues that Code § 18.2-255(A)(ii) prohibits 

causing a person under 18 years of age to assist in the 

distribution of drugs to another juvenile. Relying on this 

construction of the statute, Kelso argues that the record is 

silent with regard to the age of the confidential informant to 

whom M.B. sold the marijuana and, therefore, the evidence was 

insufficient to establish venue in Hanover County and to convict 

him of the substantive offenses. The Court of Appeals declined 

to address this argument either as it relates to venue or 
8

sufficiency of the evidence, finding that Kelso failed to make 

the argument in the trial court and therefore he did not 

preserve the issue for appeal. Rule 5A:18. Kelso asserts here 

that this holding was error.5 We disagree with Kelso.

The record demonstrates that at no point in the trial did 

Kelso move to strike the evidence because it was insufficient to 

support the convictions. Similarly, Kelso’s arguments at trial 

in support of his motion to dismiss for improper venue were

based on his assertion that he did nothing in Hanover County. 

Thus, Kelso has not preserved this issue for appeal. Rule 5:25.

In summary, for the reasons stated above, we will affirm 

the judgment of the Court of Appeals.

Affirmed.

 5 Kelso did not assign error to the Court of Appeals’ 

refusal to consider the issue through the application of the 

ends of justice provision of Rule 5A:18.