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Criminal – Sale Of Wild Animal Parts – Mounted Deer Heads – Jurisdiction

Deborah Elkins//September 16, 2010

Criminal – Sale Of Wild Animal Parts – Mounted Deer Heads – Jurisdiction

Deborah Elkins//September 16, 2010

A defendant who variously explained his possession of mounted deer heads offered for sale on eBay by saying they were road kill, legally harvest or from a butcher shop, and who did not hold a valid taxidermy license, has convictions upheld by the Court of Appeals from selling or offering to sell wild animal parts in violation of Va. Code § 29.1-553.

Defendant argues the Virginia court had no jurisdiction because the sales of the mounted deer heads occurred in Pennsylvania where the items were stored, not Virginia. Our appellate courts have never held that a crime must begin with extraterritorial acts in order for the “immediate result” theory of jurisdiction to apply; our court 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 the chain of events set in motion by them, must be the immediate cause of the harm the commonwealth seeks to punish.

In this case, the right of Virginia to prosecute the offenses under the immediate result theory is even stronger than in Gregory v. Commonwealth, 5 Va. App. 89 (1987). Defendant 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 commonwealth and also by posting them for sale on eBay while in the commonwealth. An additional component of the sales also occurred here, where defendant received payment for the deer mounts through an online account. The record does not indicate any intervening act of any sort took place. Although Virginia’s loss was to its right to control the sale of its natural resources without proof of legitimate possession and this loss was somewhat 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. The trial court had jurisdiction to convict defendant.

Defendant argues the commonwealth failed to prove his sales of the deer heads did not fall into an exception provided by law under Code § 29.1-553. We agree with the commonwealth that the statutory language at issue merely provides a statutory defense that defendant failed to prove, and is not a part of the definition of the prohibited conduct defined in the statute.

The panel rejects defendant’s additional claims that the sales were authorized because 1) he was a licensed taxidermist authorized to sell unclaimed mounted animals; 2) deer are “fur-bearing” animals, rendering the sales lawful under Code § 29.1-536; 3) the deer hides he sold were from legally taken deer; and 4) the mounts constituted “implements” made from legally harvested deer skeletal parts, including antlers.

Finally, defendant could be convicted of grand larceny. Because the evidence supports the trial court finding that defendant 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 does not require reversal of any of defendant’s convictions.

Convictions for two misdemeanors and one felony are affirmed.


Powell, J.: I respectfully dissent from the portion of this opinion affirming defendant’s felony conviction by holding that the “immediate result doctrine” provides Virginia courts with jurisdiction over defendant’s sale of the mounted deer heads stored in Pennsylvania.

Although I find Virginia does not have jurisdiction to prosecute defendant for the sales
of the mounted deer heads, it cannot be overlooked that defendant was tried on the theory that he both offered to sell and sold wild animal parts in violation of Code § 29.1-553. The court must examine whether defendant could properly be convicted of offering to sell the mounted deer heads in violation of the statute. I disagree with defendant’s contention that because the actual sales did not occur in Virginia, he cannot be convicted of the corresponding offers for sale. There is sufficient evidence to support defendant’s misdemeanor convictions on the basis that he offered for sale three mounted deer heads in violation of Code § 29.1-553. I would vacate his felony conviction and remand for resentencing as a class 1 misdemeanor.

Goble v. Commonwealth (Elder, J.) No. 1976-09-3, Sept. 14, 2010; Augusta County Cir.Ct. (Ludwig) Dana R. Cormier for appellant; Jennifer C. Williamson, AAG, for appellee. VLW 010-7-356, 22 pp.

VLW 010-7-356

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