COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Powell and Senior Judge Annunziata Argued by teleconference

JON GOBLE, S/K/A JONATHON THOMAS GOBLE OPINION BY v. Record No. 1976-09-3 JUDGE LARRY G. ELDER SEPTEMBER 14, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF AUGUSTA COUNTY Victor V. Ludwig, Judge Dana R. Cormier (Dana R. Cormier, P.L.C., on brief), for appellant. Jennifer C. Williamson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.
Jon Goble appeals his convictions for selli ng or offering to sell wild animal parts in violation of Code § 29.1-553. Gobl e argues that the trial court er red in exercising jurisdiction because the sales of the wild an imal parts occurred in Pennsylvania. He further contends the Commonwealth bore the burden of proving the sa les did not fall under a statutory exception and that if he, instead, bore the burden of proving application of a statut ory exception as an affirmative defense, he met that burden. Finally, he contends the evidence failed to prove the aggregate value of the sales was greater than $200, as required under the statutory enhancement to punish him for a felony rather than a misdemea nor. For the reasons that follow, we affirm Goble’s conviction and punishment fo r two misdemeanors and one felony.- 2 - I. BACKGROUND On September 22, 2008, Officer Neil T. Kester of the Virginia Department of Game and Inland Fisheries (the Department ) executed a search warrant at Goble’s residence. Officer Kester was searching for records and documents , including electronic transactions on Goble’s computer, pertaining to violati ons of Code § 29.1-553, specifically, the sale of a mounted black bear. During the search, Goble’s computer wa s seized, and Goble volun tarily logged onto the computer for the officers and provided them with his user name and password for eBay, an international online sale and auction site through which users buy a nd sell a variety of merchandise. With the user name and password Goble prov ided, Officer Kester was able to access Goble’s eBay account. Officer Ke ster recovered evidence of three eBay listings for mounted deer heads 1 that Goble had listed and sold. The listi ngs showed that Goble had sold one deer head mount on June 30, 2008, for $450, one on July 11, 2008, for $432.27, and one on September 7, 2008, for $510. The listings also indicat ed that, at the time they were listed, the deer head mounts were located in Milford, Pennsyl vania. It was undisput ed that Goble received payment for the sales through an online account while in Virginia. Goble was indicted on six counts of selling or attempting to sell a wild animal or part thereof in violation of Code § 29.1-553. On Ma y 21, 2009, Goble waived his right to a jury trial and pleaded not guilty to th e charges against him. At trial, the Commonwealth offered evidence that Goble did not ha ve a valid taxidermy permit at the time of the search. Officer Kester also testified that as to eac h of the first six items

1 According to testimony elicited at trial, each mounted deer he ad consisted of a deer hide or hides sewn on a Styrofoam mold to resemble a deer head. Antlers were then attached to the form.- 3 - on the inventory return, all of which were antl ers, Goble did not have a tag or check card confirming his possession of them was legal. 2 Kester testified it was the taxidermist’s responsibility, when working with hi s own or a client’s animal part s, to get either the check card, the check card number, or a confirmation numbe r to confirm the legality of the possession. Additionally, the trial court heard testimony from Mike Fies, a wildlife biologist and leader of the department’s Furbear Project. 3 Fies testified that the term “fur-bearing animals” refers specifically to animals that are commonly trapped. 4 After the Commonwealth rested its case, Gobl e took the stand in his own defense. He testified that he had a taxidermy permit from November 3, 2006, through July 31, 2007. He acknowledged that his permit was revoked after he pled guilty to illegally possessing a “road kill fawn.” When he attempted to renew his perm it, on November 28, 2007, the Department denied his application and informed him that he could not re-apply for a permit until August 2008. As a result of that letter, Goble claimed he “had a taxidermy permit” when he met with the Department’s undercover officer on September 2, 2008, but he did not offer a copy of any such permit into evidence, and no evidence in the record shows that Goble ever obtained a new permit.

2 The record established that a “tag” or “g ame check card” is an official certificate bearing a unique identifying number and containi ng the notation of a conservation police officer or other law enforcement officer confirming that the wild game or game part to which it is attached was obtained in a manner that complied with the law.

3 According to Fies, the Furbear Project ma nages Virginia’s wildlife populations and recommends the creation of trappi ng and hunting seasons as needed.

4 Goble objected to this testimony, arguing that Fies was opining as to the legal definition of “fur-bearing animals.” The trial court overr uled the objection, stating that Fies was only reading Code § 29.1-100 which states, “ ‘Fur-bearing animals’ includes beaver, bobcat, fox, mink, muskrat, opossum, otter, raccoon, skunk, and weasel.”- 4 - Regarding the mounted deer heads that we re the subject of the prosecution, Goble provided three different accounts as to the origin of the deer hides he used to create them. He first testified that all three hides were “road ki lls” he had obtained from the police and that he had tags for all of them. 5 He then stated “[he] believe[d] that two of [the hides] were [from] road kills” and that he “legally harvested” the thir d, meaning that he obtaine d it while hunting legally in season. Finally, he changed his testimony again, stating that the hides had come from any one of three sources: a road kill fo r which he had a tag, a legal harv est, or a butcher shop. With regard to the antlers, Goble stat ed that he bought them from a “B ig Game Show” in Pennsylvania and then said that he “believe[d]” he bought one of the sets of the antlers on eBay. Goble admitted that he posted the three mounted deer heads for sale on eBay while he was in Virginia but stated that, at the time he made the postings, the mo unted deer heads were located in Pennsylvania and were shipped from there, as well. Goble explai ned that he stored the mounts at his father’s house in Pennsylvania because he did not ha ve enough room to store all of his mounted deer heads in his basement in Virginia . Goble’s sister indica ted Goble did all of his taxidermy work in the basement of his Virginia residence. At the close of all the evidence, Goble move d to strike, and the trial court denied the motion, reasoning as follows: “[E]ven if he was in lawful possession of the antlers, . . . he still sold deer antlers, and I can’t find any au thority for him to be able to do that.” After hearing all of the evidence, the trial court ruled as follows: Mr. Goble both offered to sell a nd sold those items on his front door step which was the Internet as it came into his house in Augusta County. And so it is the conclusion of the Court that, in fact, he sold those items from Augusta County. They may have been shipped from someplace else, but he sold them from Augusta

5 Goble testified that he had “[p]robably 20” road kill tags in his pocket while he was testifying. However, he made no effort to pr oduce any of those tags or introduce them into evidence, and he acknowledged that he could not match any of the tags to a specific deer or hide.- 5 - County. And on that basis, then, I find him guilty of . . . the three sales of deer. The trial court subsequently determined that, beca use the aggregate of the three sales was greater than $200, Goble was guilty of one felony and two misdemeanors. 6 Goble subsequently filed a motion to reconsider , arguing that he did not sell the antlers in Virginia and that, because the Commonwealth had failed to prove the value of the antlers alone was greater than $200, he was guilty, at most, of th ree misdemeanors. In a letter opinion of July 10, 2009, the trial court denied Goble’s motion to reconsider. It expressly found Goble did not have a taxidermy license at the time of the June a nd July 2008 sales and that he failed to prove he had a license at the time of the September 2008 sale . It rejected Goble’s claim that he did not sell the antlers in Virginia, noting that he list ed the items for sale in Virginia and received payment in Virginia, regardless of where the item s were shipped from, and holding that the act of attempting to sell was complete when Goble listed the items on eBay, “a marketing vehicle that surely reached a Virginia audience.” Finally, it addressed Goble’s claim that the Commonwealth failed to prove the value of the antlers, the only item s it had ruled were illegally sold. It rejected the claim, first, because Goble never raised at trial the issue that th e Commonwealth failed to prove the value of the antlers by themselves. Second, it concluded Goble’s sales of the hides on the mounts were also illegal. It characterized the issue of whether the deer were “legally taken or not” as an affirmative defense rather than an element of the crime itself and found Goble had failed to meet his burden of proving the issue to a level sufficient to raise a reasonable doubt as to his guilt. As a result, it concluded, the va lue of each deer head mount, as a whole, was the proper value. Goble noted this appeal.

6 Of the original six counts, two were dropped prior to the start of the trial, and a third was struck after the trial cour t heard all of the evidence.- 6 - II. ANALYSIS
A. LOCATION OF THE SALES FOR THE PU RPOSE OF DETERMINING JURISDICTION Goble argues that because the sales of the mounted deer heads did not occur in the Commonwealth, the trial court erre d in exercising jurisdiction. He contends the undisputed evidence demonstrates that the title to the mounted deer heads passed in Pennsylvania and, therefore, that the sales occu rred in Pennsylvania. On that ground, he argues he cannot be convicted under Code § 29.1-553(A). 7 The Commonwealth, on the ot her hand, contends that the sales occurred in Virginia because Goble posted the mounted deer heads on eBay from his home and received payment in Virginia. When attempting to define terms in one part of the Code, courts should read a statute with “a vi ew toward harmonizing it with other statutes. Because the Code of Virginia is one body of law, other Code sections using the same phraseology may be consulted in determining the meaning of a statute.” Marsh v. Commonwealth , 32 Va. App. 669, 677, 530 S.E.2d 425, 430 (2000) (quoting Branch v. Commonwealth , 14 Va. App. 836, 839, 419 S.E.2d 422, 425 (1992)). Under Code § 8.2-106, a “sale” is defined as “t he passing of title from the seller to the buyer for a price.” The Code provi des that “[u]nless otherwise expl icitly agreed title passes to the buyer at the time and place at which the selle r completes his performance with reference to

7 Code § 29.1-553(A) provides as follows: Any person who offers for sale, se lls, offers to purchase, or purchases any wild bird or wild an imal, or any part thereof, or any freshwater fish, except as provide d by law, shall be guilty of a Class 1 misdemeanor. However, when the aggregate of such sales or purchases or any combinati on thereof, by any person totals $ 200 or more during any 90-day pe riod, that person shall be guilty of a Class 6 felony.- 7 - the physical delivery of the goods . . . .” Code § 8.2-401(2). In the case of an auction, the Code further provides that “[a] sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner.” Code § 8.2-328; see 1-4 Corbin on Contracts § 4.14 (2010) (noting that when the auctioneer ac cepts the bid “in any mode that the bidder has reason to know and understand . . . , the sale is consummated” and “[n]either party can withdraw”). According to the traditional view of jurisdic tion, “[a crime] must ta ke place within this State to give our courts jurisd iction. . . . Every crime to be punished in Virginia must be committed in Virginia.” Farewell v. Commonwealth , 167 Va. 475, 479, 189 S.E. 321, 323 (1937). In the present case, we need not deci de whether title passed pursuant to Code § 8.2-328 or § 8.2-401 because the Commonwealth failed to prove either (1) in which state the auctioneer announced the sale by the fall of the hammer or other customary means or (2) in which state physical delivery of the mounted deer heads occu rred. As such, we cannot conclude under the traditional view of jurisdiction that “sale[s]” pr oscribed by Code § 29.1-553 occurred within the Commonwealth. The Commonwealth contends, however, that Virginia’s courts have jurisdiction over Goble’s sales of the mounted deer heads because he made his eBay postings from his residence in Virginia and received paymen t for those sales in Virginia. Our Supreme Court has recognized an exception to the traditional view of jurisdictio n, referred to as the “immediate result doctrine.” Travelers Health As s’n v. Comm onwealth , 188 Va. 877, 891, 51 S.E.2d 263, 268 (1949). When our Supreme Court first adopted the immediate result doctrine, it explained as follows: “A question often arises as to th e jurisdiction of a crime where the accused, while in one state, sets in motion a force which operates in another state , as where a shot is fired at a person across a state line or an injurious substance is sent to a person in another state with intent to injure him. In such cases the view has generally been taken that actual presence in a state is not necessary to make a- 8 - person amenable to its laws for a crime committed there; for if a crime is the immediate result of his act, he may be made to answer for it in its courts, although actually absent from the state at the time he does the act.” Id. (quoting 14 Am. Jur. Criminal Law § 227). More recently, in Jaynes v. Commonwealth , 276 Va. 443, 666 S.E.2d 303 (2008), the Supreme Court applied the immediate result theory to conclude the Commonwealth had jurisdiction to prosecute a pers on for violating the Virginia Computer Crimes Act, Code §§ 18.2-152.1 through -152.15. Jaynes, from his home in North Carolina, sent unsolicited bulk e-mail, disguised with false routing and tr ansmission information, to over 50,000 people who were subscribers of the internet service Am erica Online, Inc. (AOL). 276 Va. at 448-50, 666 S.E.2d at 306. Although those e-mails originated outside the state, they passed through AOL’s servers, which the evidence prove d were located in Virginia. Id. Jaynes, citing Moreno v. Baskerville , 249 Va. 16, 452 S.E.2d 653 (1995), alleged “h e had no control over the routing of the e-mails” and that AOL’s method of routing was an intervening act. Jaynes , 276 Va. at 451-52, 666 S.E.2d at 306-07. He contended that “his actions did not have an ‘immediate result’ in Virginia” and that the Commonwealth l acked jurisdiction to prosecute him. Id. In rejecting Jaynes’ claim, the Supreme Cour t held the evidence established that “the location of AOL’s servers [in Virginia] was info rmation easily accessible to the general public” and that “all e-mail must flow through the recipient’ s e-mail server in order to reach the intended recipient.” Id. at 451, 666 S.E.2d at 307. Thus, it conclu ded, “an intended and necessary result of Jaynes’ action [in sending over 50,000 messa ges to e-mail addresses that ended ‘in @aol.com’], the e-mail transmission through [AOL’s] computer network, occurred in Virginia.” Id. at 452-53, 666 S.E.2d at 307. Relying on its prior decision in Travelers Health , in which it cited Strassheim v. Daily , 221 U.S. 280, 284-85 (1911), our S upreme Court reiterated in Jaynes that “a state may exercise jurisdiction over criminal acts that are committed outside the state, but- 9 - are intended to, and do in fact, produce harm within the state.” 276 Va. at 452, 666 S.E.2d at
307. Our appellate courts have ne ver held that a crime must begin with extraterritorial acts in order for the immediate result theory of jurisdicti on to apply; our courts have held instead only that, if an act or acts committed outside the Commonwealth constitute key elements in the prosecution for the crime at issue, those extraterritorial acts, or th e chain of events set in motion by them, must be the immediate cause of th e harm the Commonwealth seeks to punish. See
Moreno , 249 Va. at 19, 452 S.E.2d at 655 (distinguishi ng the immediate results doctrine where an intervening act occurred and therefore the fa cts were “entirely unlike a case in which a shot fired across a state line ‘immediately’ results in harm”). Our application of the immediate result doctrine in Gregory v. Commonwealth , 5 Va. App. 89, 360 S.E.2d 858 (1987), is instructive. In Gregory , the defendant, a Virginia resident and a long-distance tr actor-trailer driver who rou tinely traveled outside the Commonwealth in the course of hi s employment, pledged his tracto r as collateral for a loan he obtained from a Virginia bank. Id. at 90, 360 S.E.2d at 859. Pursuant to the security agreement Gregory entered into with the bank, Gregory agr eed not to sell the prope rty without the bank’s written consent. Id. at 90-91, 360 S.E.2d at 859. Gregory fe ll behind on his loan payments, and while outside the Commonwealth on business, Gre gory experienced mechanical difficulties with the tractor, lost his job, and sold the tractor without the bank’s consent. Id. The trial court convicted Gregory for unlawfully disposing of property upon which there was a lien without the written consent of the lienor, de fined in Code § 18.2-115 as larceny. 8 Id. at 90, 91, 360 S.E.2d at

8 The statute also proscribed removing s ecured property from the Commonwealth, and Gregory was indicted for violating that portion of the statute, as well. However, “[b]ecause of the nature of Gregory’s business, . . . it [was] c onceded that the bank did not expect and did not request notification when on routine trips Gr egory removed this property out-of-state.” Gregory , 5 Va. App. at 91, 360 S.E.2d at 859.- 10 - 859, 860. In doing so, the court expressly found Gre gory formed the intent to sell the tractor while outside the Commonwealth, a finding that was supported by the evidence. Id. at 92, 360 S.E.2d at 860. On review, we concluded the statute defini ng the crime did not require proof that “the fraudulent intent to dispose or the actual disposal of the secu red property occurred within the boundaries of Virginia.” Id. at 93, 360 S.E.2d at 860. We also rejected Gregory’s contention that Virginia lacked jurisdiction to prosecute him for the crime. Id. at 93, 360 S.E.2d at 861. We noted that “the lien was created and the failure to obtain the bank’s consent to the disposal of its collateral both occurred in [the Commonwealth]” a nd that “[o]nly the formation of the intent to deprive the bank of its collateral and the actual disposal of the tractor occurred outside [the Commonwealth].” Id. We agreed with the Commonwealth ’s observation that the statute was intended to prevent both “the ec onomic injury caused to the s ecured party by Gregory’s actions and the infringement of the lien created in Virginia.” Id. at 93-94, 360 S.E.2d at 861. Relying on the Supreme Court’s decision in Travelers Health , we concluded that “harm [was] caused in Virginia by Gregory’s criminal acts partially committed within [the] Commonwealth” and that, under the immediate result doctrine, “such acts can be prosecuted here.” Id. at 94, 360 S.E.2d at 861 (emphasis added). In Goble’s case, the right of Virginia to prosecute the o ffenses under the immediate result theory is even stronger than in Gregory . Goble started the sequence of events culminating in the illegal sales inside the Commonwealth rather than outside it, both by formulating the intent to sell the deer mounts at issue while in the Co mmonwealth and also by posting them for sale on eBay while in the Commonwealth. An additiona l component of the sales also occurred here, where Goble received payment for the deer m ounts through an online account. The record does not indicate an intervening act of any sort took place. Although Virginia’s loss was to its right to- 11 - control the sale of its natural resources without proof of legitimate possession and this loss was somewhat less tangible than the financial harm suffered by the bank in Gregory , this difference in the nature of the harm did not render the harm any less immediate or direct than in Gregory

. Just as the lienholder in Gregory had a contractual righ t not to have the property in which it had a security interest disposed of without its pe rmission, the Commonwealth, which has the duty to safeguard its resources for all Virginians, has a legitimate interest in preventing its deer and deer parts from being sold in a manner that vi olates Virginia stat utes and regulations. Accordingly, we conclude the trial court ha d jurisdiction to convict Goble of the charged offenses.
B. THE STATUTORY EXCEPTIONS: ELEMEN T VERSUS AFFIRM ATIVE DEFENSE Goble next argues that the Commonwealth failed to prove his sales of the mounted deer heads did not fall into an exception provided by law. Specifically, Gobl e contends that the phrase “except as provided by law,” as used in Code § 29.1-553, see supra note 7, is a negative element of the offense that the Commonwealth must disprove. The Commonwealth, on the other hand, argues that the phrase merely provides a statutory defense th at Goble failed to prove. We agree with the Commonwealth. It is well established that, “[w]hen the sufficiency of the evidence is challenged on appeal, we determine whether the evidence, viewed in the light most favo rable to the prevailing party, the Commonwealth, and the reasonable inferences fairly de ducible from that evidence support each and every element of the charged offense.” Haskins v. Commonwealth , 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779 (1999). “[W]hen we consider the sufficiency of the evidence we do not consider each piece of evidence in isolation. Instead, we review the totality of the evidence to determine whether it was sufficient to prove an offense.” Bowling v.- 12 - Commonwealth , 51 Va. App. 102, 107, 654 S.E.2d 354, 356 (2007). “The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is ‘plainly wrong or without evidence to support it.’” Id. (quoting Code § 8.01-680). Thus, “[t]he issue upon appellate review is ‘w hether, after viewing th e evidence in the light most favorable to the prosecution, any rational trier of fact could have found the esse ntial elements of the crime beyond a reasonable doubt.’” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Furthermore, “[p]enal statutes are to be strictly construed agai nst the Commonwealth and in favor of the citizen’s liberty.” Martin v. Commonwealth , 224 Va. 298, 300, 295 S.E.2d 890, 892 (1982). “However, when statutor y construction is required, we construe a statute to promote the end for which it was enacted, if such an in terpretation can reasonably be made from the language used.” Mayhew v. Commonwealth , 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995). When construing penal statutes which contain qualifications, exceptions or exemp tions to their application, the limiting language may be viewed as a negative element of the offense which the prosecution must disprove. Alternately, the court may determine that the exemption is a statutory defense, which the accused can assert to defeat the prima facie case of the prosecution. In determining whether specific limiting language is an element of the offense or a stat utory defense, a court should look both to the intent of the statute as a whole and the ability of the respective parties to assert th e existence or absence of the underlying facts sustaining the a pplicability of the limitation. Id. at 489-90, 458 S.E.2d at 307-08 (citations omitted). When determining whether the limiting language is a negative element or a statutory defense, this Court has identified four factors to be considered: “the wording of the exception and its role in relation to the other words in the statute; whether in light of the situation prompting legislative action, the exception is es sential to complete the general prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e.,- 13 - sets forth an affirmative defense; and whether the matter is peculiarly within the knowledge of the defendant.” Id. at 490, 458 S.E.2d at 308 (quoting Commonwealth v. Stoffan , 323 A.2d 318, 324 (Pa. Super. Ct. 1974)). An application of these factors to the presen t case demonstrates that the phrase “except as provided by law,” as used in Code § 29.1-553, esta blishes a statutory defense as opposed to a negative element. It is clear that the exception is not part of the definition of the prohibited conduct defined in Code § 29.1-553. A plain reading of the statut e demonstrates that the prohibited conduct is offering for sale, selling, offering to purchase, or purchasing “any wild bird or wild animal, or any part thereof, or any freshwater fish.” Code § 29.1-553. Significantly, the exception is referenced after the elements of the crime are defined and is not “essential to complete the general prohibition intended.” Mayhew , 20 Va. App. at 490, 458 S.E.2d at 308. Although the exception contained in Code § 29.1-553 does not create “an excuse or justification for what would ot herwise be criminal conduct,” Mayhew , 20 Va. App. at 490, 458 S.E.2d at 308, we do not believe this to be disposi tive, as a number of s ituations exist in which wild animal parts may be sold legally. For in stance, Code § 29.1-553(D) specifically provides an exception for “licensed Virginia auctioneer[s] or licensed auction firm[s ]”; similarly, statutory exceptions exist for non-profit organizations, see Code § 29.1-521(A)(11), and American Indians, see Code § 29.1-521(B). Finally, it is readily appa rent that the facts needed to establish these exceptions are necessarily and “peculiarly within the knowledge of the defendant.” The Commonwealth would not, generally, be privy to the evidence required to establish these exceptions. Accordingly, we hold that the ex ception provided in Code § 29.1-553 is a statutory defense rather than an element of the crime.- 14 - C.
APPLICATION OF CLAIMED STATUTORY EXCEPTIONS Goble argues that, even if the exception is a statutory defense, the evidence he presented at trial demonstrates that his actions fell wi thin an exception provided by law. Specifically, Goble contends the sales were authorized because (1) he was a licensed taxidermist authorized to sell unclaimed mounted animals, see 4 VAC 15-40-270; (2) deer ar e “fur-bearing” animals, rendering the sales lawful under Code § 29.1-536; (3) the deer hide s he sold were from legally taken deer, see 4 VAC 15-90-280; and (4) the mounts constituted “implements” made from “legally harvested deer skelet al parts, incl uding antlers,” see Code § 29.1-521(10). We disagree. 1. Sale of Unclaimed Mounted Animals Under 4 VAC 15-40-270, a Virginia licensed ta xidermist may sell “[u]nclaimed mounted native wildlife specimens or their processed hide s, when taken in accordance with the provisions of law and regulations.” However, the tria l court found Goble did not possess a valid permit when the sales occurred in 2008, and the evidence, viewed in the light most favorable to the Commonwealth, supports that fi nding. Goble produced an e xpired taxidermy permit for 2007 and failed to produce any evidence that he po ssessed a valid permit for 2008 when the sales occurred. Indeed, the evidence indicates that th e Department denied Goble’s request to renew his permit on November 28, 2007, and informed him that he would not be elig ible to re-apply for a permit until August 2008. Additionally, Goble pr esented no evidence that the mounted deer heads were unclaimed. Indeed, Goble’s own testim ony established that none of the deer used to create the mounts were unclaimed; rather, he test ified that the deer were “road kills,” legally harvested by him, or acquired from a butcher. Thus, the exception in 4 VAC 15-40-270 does not apply.- 15 - 2. Sale of Certain Parts of “Fur-Bearing Animals” Code § 29.1-536 allows for the sale of “the hides, furs or pelts of fur-bearing animals legally taken and possessed, and the carcass of any fur-bearing animal,” so long as the sale is “in accordance with §§ 29.1-400 through 29.1-407.” Code § 29.1-400 prohibits buying, selling exchanging, trafficking or tradi ng in, bargaining for, soliciting for purchase, or possessing “the hides, furs or pelts of wild animals, or otherw ise deal[ing] in fur as a business, without having first obtained a permit, subject to the exemp tions of Code § 29.1-401.” Code § 29.1-401(A) states that “[a] permit shall not be required of any hunter or tra pper to possess or dispose of the hides, furs or pelts of wild animals legally shot or caught by him . . . .” Thus, it is clear that the interaction among Code §§ 29.1-536, -400, and -401(A) provides several exceptions to Code § 29.1-553. Assuming, arguendo , that deer are fur-bearing animals, we hold Goble failed to prove his conduct fell within any of these exceptions. Firs t, Code § 29.1-400 authorized Goble to sell the mounted deer heads only if he had a fur permit. Goble made no claim that he had a valid fur permit, and the evidence does not support such a conclusion. Alternatively, under Code § 29.1-401(A), G oble could sell the m ounted deer heads without a permit if he legally shot or caught the deer. At trial, Goble inconsistently claimed that a majority of the deer were either from road kills or a butcher. Although Goble also claimed at one point that he legally harvested one of the deer, the trial c ourt was not required to credit this conflicting, self-serving testimony. See Haskins v. Commonwealth , 44 Va. App. 1, 10, 602 S.E.2d 402, 406 (2004) (recognizing that the tria l court may disbelieve the defendant’s self-serving explanation as “lying to conceal hi s guilt”). Thus, the evidence supports a finding that Goble failed to prove he lega lly shot or caught the deer that he used to make the mounted- 16 - deer heads and, therefore, th at he cannot avail himself of the exception provided by Code § 29.1-536. 3. Sale of Hides from Legally Taken Deer 4 VAC 15-90-280 specifically provides that “[i]t shall be lawful to sell hides and hooves from any legally taken deer.” Although Goble cl aimed he had the tags issued for the deer he used to make the mounted deer heads, he made no effort to produce those tags or introduce them into evidence. Additionally, he admitted that he could not actually match the tags with the deer used to make the mounted deer heads. Thus, Gobl e failed to prove that the deer used to make the mounts were “legally taken deer,” as required to invoke the exception provided by 4 VAC 15-90-280. In summary, not only did Goble fail to prove he had a permit that allowed him to sell the mounts or that he legally shot or caught the deer, he also failed to produce road kill tags to show he was in legal possession of the mounted deer heads. 4. Sale of “Implements” Made From Antlers With regard to the antlers, Goble argues that his sale of the deer antlers was legal under Code § 29.1-521(10)(ii). Code § 29.1- 521(10) states, in relevant part , that “the provisions of [Code § 29.1-521] shall not be construed to prohibit . . . (ii) the manufacture or sale of implements, including, but not limited to, tools or utensils, made from legally harvested deer skeletal parts, including an tlers.” Goble was charged unde r Code § 29.1-553, and not Code § 29.1-521. Thus, any exception provided by Code § 29.1-521 is irrelevant to the present case.
D. VALUE Goble contends the evidence failed to prove the value of the antlers by themselves and, thus, that if the evidence was insufficient to prove the sale of the hides was against the law, his- 17 - felony conviction cannot stand beca use violation of Code § 29.1-553 is a felony only if aggregate sales total more than $200 over any 90-day peri od. Because the evidence supports the trial court’s finding that Goble lacked statutory or regulatory authority to sell both the hides and the antlers comprising the deer mounts and also establishes the value of each mount as a whole, the lack of evidence of the value of each set of antlers doe s not require reversal of any of Goble’s convictions.
III. For the foregoing reasons, we affirm Goble’s convictions. Affirmed.- 18 - Powell, J., dissenting. I respectfully dissent from the portion of this opinion affirming Goble’s felony conviction by holding that the “immediate re sult doctrine” provides Virginia courts with jurisdiction over Goble’s sale of the mounted deer heads stored in Pennsylvania. Under the immediate result doctrine, “a state may exercise jurisdiction over criminal acts that are committed outside the state, but are intended to, and do in fact, produce harm within the state .” Jaynes v. Commonwealth , 276 Va. 443, 452, 666 S.E.2d 303, 307 (2008) (emphasis added). Thus, the immediate result doctrine extends “jurisdiction to prosecute an offense not fully executed in Virginia but resulting in immediate harm within the Commonwealth.” Foster-Zahid v. Commonwealth , 23 Va. App. 430, 440, 477 S.E.2d 759, 764 (1996) (emphasis added); see also Gregory v. Commonwealth , 5 Va. App. 89, 94, 360 S.E.2d 858, 861 (1987) (“Where harm is caused in Virginia by criminal acts partially co mmitted within this Commonwealth, such acts can be prosecuted here.”). Implicit within the immediate results doctr ine is the requirement that the harm the Commonwealth seeks to punish must immediately result from the extr aterritorial criminal act or from the chain of events set into motion by the act. See Travelers Health Ass’n v. Commonwealth , 188 Va. 877, 892, 51 S.E.2d 263, 269 (1949) (“‘It has long been a commonplace of criminal liability that a person may be charged in the place where the evil results , though he is beyond the jurisdiction wh en he starts the train of events of which the evil is the fruit .’” (quoting Strassheim v. Daily , 221 U.S. 280, 284-85 (1911)) (emphasis added)). The sequence of events is critical to th e proper application of the immediate results doctrine. In its various explan ations of the immediate results doctrine, our Supreme Court has repeatedly used the example of a shot fired across state lines. See, e.g. , id. at 891, 51 S.E.2d at 268 (Adopting the immediate results doctrine in situations “whe re the accused, while in one- 19 - state, sets in motion a force which operates in an other state, as where a shot is fired at a person across a state line.”); see also Moreno v. Baskerville , 249 Va. 16, 19, 452 S.E.2d 653, 655 (1995) (distinguishing the immediate resu lts doctrine where an interven ing act occurred and therefore the facts were “entirely unlike a case in which a shot fired across a st ate line ‘immediately’ results in harm”). Similarly, in each of the cases cited by the majority, a criminal act was perpetrated which resulted in a harm. None of those cases re flect the facts of this case where the harm sought to be prevented, i.e. violation of Virginia’s interest in prot ecting its wildlife from illegal taking, occurred before the criminal act that is being prosecuted. See Jaynes , 276 Va. 443, 666 S.E.2d 303 (sending bulk e-mail with false routing information from North Carolina results in illegal use of a Virginia-bas ed e-mail provider’s computer network); Travelers Health
Ass’n , 188 Va. at 892, 51 S.E.2d at 269 (selling insuranc e without the required permits results in economic loss in Virginia); Foster-Zahid , 23 Va. App. at 430, 477 S.E.2d at 759 (child withheld outside Virginia results in harm to re lationship with father in Virginia); Gregory , 5 Va. App. at 89, 360 S.E.2d at 858 (illegal conve rsion of property outside of Virginia results in economic injury in Virginia). All of these cases make it clear that a proper appl ication of the immediate results doctrine is dependent on a criminal act preceding the resulting ha rm in Virginia. The doctrine does not, by its terms, apply to a set of facts where the harm, which has already occurred, provides the fodder for th e subsequent criminal act. Thus, absent a showing of the immediate harm resulting from the criminal act, Virginia does not have jurisdiction. In the present case, the extr aterritorial criminal act was the sale of the mounted deer heads. According to the majority, the harm was “Virginia’s loss . . . to its right to control the sale of its natural resources without proof of legitimate possession.” Even if this is the harm sought to be prevented, in reaching this conclusion the majority ignores the fact that the “loss” occurred as soon as the mounted deer heads were removed from the state, and therefore- 20 - necessarily preceded the extraterrito rial act. As nothing in the C ode criminalizes the transfer of wild animal parts to another state, I find that the Commonwealth has faile d to demonstrate what harm, if any, occurred in Virginia as an immediate result of Goble’s sales of mounted deer heads stored in Pennsylvania. See, e.g. , United States v. Dove , 247 F.3d 152, 156 (2001) (recognizing that Code § 29.1-553 “prohibits the sale of [wild animal parts], but not their transportation or possession”). Furthermore, I believe the majority misidentifie s the harm sought to be protected. As it is the duty of the Department to “[e]nforce or cause to be enforced all laws for the protection, propagation and preservation of game birds and game animals of the Commonwealth,” Code § 29.1-109 (emphasis added), it is my belief that the harm the Commonw ealth is seeking to prevent is injury to its wildlife through illegal taking, i.e. poaching. See also 4 VAC 15-40-270 (allowing a licensed taxidermist to sell “[u]nclaimed mounted na tive wildlife specimens or their processed hides, when taken in accordance with th e provisions of law and regulations ” (emphasis added)). Clearly the illegal taking in the present case occurred well before the sale and in no way could be considered a result of the subsequent sale. Although I find that Virginia does not have jurisdiction to prosecute Goble for the sales of the mounted deer heads, it cannot be overlooked that Goble was tried on the theory that he both offered to sell and sold wild animal part s in violation of Code § 29.1-553. This Court has previously recognized that , “[a]n appellate court may affirm th e judgment of a trial court when it has reached the right result for the wrong reason.” Driscoll v. Commonwealth , 14 Va. App. 449, 451-52, 417 S.E.2d 312, 313 (1992). In applying this rationale, this Court is limited to those situations where the correct reason for affirming th e trial court was raised at trial and no further factual resolution is needed. Id. at 452, 417 S.E.2d at 313-14. At trial, the Commonwealth specifically argued that Goble bot h offered to sell and sold the mounted deer heads. Indeed,- 21 - Goble acknowledges these facts in his brief. Furt her, it is clear that the trial court found that Goble had both sold and offered to sell the mounted deer heads in violation of Code § 29.1-553. As such, no further factual resolution is needed. Therefore, I find that this Court must examine whether Goble could properly be convicted of offering to sell the mounted deer heads in violation of Code § 29.1-553. Goble concedes that he was in Virginia wh en he posted the mounted deer heads on eBay, therefore jurisdiction is not at issue. Rather , Goble argues that Code § 29.1-553 only prohibits offers for sale where the completed sale would be illegal. Specifically, Goble contends that, because the actual sales did not occur in Virgin ia, he cannot be convict ed of the corresponding offers for sale. I disagree.
In Lynch v. Commonwealth , 131 Va. 769, 771, 109 S.E. 418, 419 (1921), our Supreme Court explained that “[t]he offe r to sell . . . is complete the moment it is made, and in no way depends for its existence upon the present or futu re ability of the person making the offer to complete the sale in accordance with the offer.” As such, “[a]n offer to sell is one thing. A completed sale is another and different thing.” Id. at 772, 109 S.E. at 419. The record clearly demonstrates that Goble was in Virginia when he offered the mounted deer heads for sale by posting them on eBay. Th e crime of offering the mounted deer heads for sale was complete at that moment; that the mounted deer heads were not act ually sold in Virginia is thus of no relevance to the determination of the place where the offer for sale occurred. Accordingly, there is sufficient evidence to support Goble’s misdemeanor convictions on the basis that he offered for sale three mounted deer heads in violation of Code § 29.1-553. Regarding Goble’s felony conviction, however, the sentence enhancement provision found in Code § 29.1-553(A) only app lies where “the aggregate of su ch sales or purchases or any combination thereof, by any person totals $ 200 or more during any 90-day period”; the statute- 22 - makes no mention of sentence en hancement for “offers for sale” or “offers for purchase.” Accordingly, punishment as a Class 1 misdemea nor is the maximum punishment to be imposed upon conviction of offering wild animals or wild animal parts for sale in violation of Code § 29.1-553(A). Therefore, I would vacate Goble’ s felony conviction, and remand the matter to the trial court for re-sentencing as a Class 1 misdemeanor. See Rufty v. Commonwealth , 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981) (vacating the defendant’s sentence and remanding for re-sentencing where trial court erroneously applied a sentence enhancement).