Clarence M. Collins v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 19, 2000
• Docket: 2698991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements Argued at Chesapeake, Virginia

CLARENCE M. COLLINS MEMORANDUM OPINION * BY v. Record No. 2698-99-1 JUDGE JAMES W. BENTON, JR. DECEMBER 19, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK E. Everett Bagnell, Judge

David J. Whitted, Assistant Public Defender, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

The trial judge convicted Clarence Collins of two counts of

larceny, both of which are a third or subsequent larceny

conviction. See Code § 18.2-104. Collins contends the evidence

was insufficient to support the convictions. We affirm the

judgments.

I.

At trial, Rebecca Smith, manager of the Family Dollar Store,

testified that Collins walked to the perfume counter at her store

and removed four bottles of cologne from a shelf. She saw Collins

return two of the bottles to the shelf and put two bottles in his

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. pocket. Smith was standing about six feet from Collins and

watched Collins leave the store. She followed Collins out of the

store, approached him on the sidewalk, and asked him if he had

anything that belonged to the store. Collins responded, "no," and

walked away. Smith returned to the store and walked toward the

back door, where she observed Collins carrying a bag under his arm

and walking toward the Be-Lo Grocery Store. She testified that

the bag appeared to be a Be-Lo bag.

Lisa Johnson, an employee of the Be-Lo store, testified that

she was preparing to leave work at 3:00 p.m. that same day when

she saw a man, who was wearing a camouflage jacket, put a package

of meat inside his pocket. Standing approximately thirty or forty

feet from the man, Johnson called Fred Moore, the assistant store

manager. When Moore arrived at the front of the store, Johnson

told him what she had seen. Although she had lost track of the

man for several seconds, she pointed to the man as she spoke to

Moore. When Johnson testified in court, she was unable to

identify the man she had seen concealing the meat.

Moore testified that Johnson informed him that a man had put

meat in his jacket and pointed to the man. Moore approached the

man outside of the store and asked him if he had taken anything

from the store. He identified Collins in court as the person he

approached. Without responding to Moore's question, Collins ran

and outdistanced Moore as Moore pursued him. After searching a

short period of time, Moore again saw Collins. Moore approached

- 2 - Collins and noticed that he had a Be-Lo bag, which contained items

from the Family Dollar Store. Moore asked to see Collins' receipt

for the items in the bag. Collins responded that "it [was] none

of [Moore's] damn business" and ran again.

Moore signaled a police officer entering the parking lot and

gave him a description of Collins. The officer found Collins and

detained him. Although Collins had five to six empty Be-Lo bags

in his back pocket, he did not then have the bag containing

merchandise. Collins also was not wearing the camouflage jacket.

Seeing that Collins did not have the bag of merchandise,

Moore and Michael Mainello, the Be-Lo manager, searched for it.

Approximately seventy to eighty yards away from where Collins was

standing with the officer, Moore and Mainello found a bag

containing a pack of chicken, chicken salad, and cheese from

Be-Lo. In addition, the bag contained shoes and cologne from the

Family Dollar Store.

Smith later identified merchandise the officer showed her as

merchandise belonging to the Family Dollar Store. Most of the

merchandise still had Family Dollar price stickers. When Smith

was talking to the officer, she identified Collins as the same

person she had seen in the Family Dollar Store.

The trial judge convicted Collins of two counts of larceny as

third or subsequent offenses. He sentenced Collins to five years

in prison on each charge, with three years suspended on each

charge, for an active jail sentence of four years.

- 3 - II.

"In every criminal prosecution the Commonwealth must

establish beyond a reasonable doubt all elements of the offense

and that the accused did commit it." Harward v. Commonwealth, 5

Va. App. 468, 470, 364 S.E.2d 511, 512 (1988). Larceny, a common

law offense in Virginia, "'is the wrongful taking of the goods of

another without the owner's consent and with the intention to

permanently deprive the owner of possession of the goods.'" Acey

v. Commonwealth, 29 Va. App. 240, 246, 511 S.E.2d 429, 431 (1999)

(citation omitted).

"[W]hen considering the sufficiency of the evidence on appeal

of a criminal conviction, we must view all the evidence in the

light most favorable to the Commonwealth and accord to the

evidence all reasonable inferences fairly deducible therefrom."

Clarke v. Commonwealth, 32 Va. App. 286, 300, 527 S.E.2d 484, 491

(2000) (citations omitted). "Direct evidence is evidence that, if

believed [by the trier of fact], resolves a matter in issue."

Floyd v. Commonwealth, 31 Va. App. 193, 198, 522 S.E.2d 382, 384

(1999).

Smith's testimony was sufficient to prove beyond a reasonable

doubt that Collins was in the Family Dollar Store, put two bottles

of cologne in his pocket, and left the store without paying for

the merchandise. Likewise, Johnson's testimony was sufficient to

prove beyond a reasonable doubt that the man, whom Moore

identified as Collins, put meat in his coat inside the Be-Lo store

- 4 - and went outside the store. Moore's testimony proved that Collins

did not pay for the meat.

The testimony of Moore and Mainello that the bag of

merchandise was found a block away from the Be-Lo store and

seventy yards from the place Collins was detained is

circumstantial evidence that corroborates the direct evidence of

Collins' theft of the merchandise. Indeed, Moore testified that

he had earlier confronted Collins while he was carrying the bag of

merchandise.

In summary, the direct evidence alone was sufficient to prove

beyond a reasonable doubt all the elements of larceny including

the identity of Collins as the thief. The Commonwealth proved

that Collins took the items wrongfully and impermissibly from the

stores with the requisite intent. The circumstantial evidence

supplemented this direct evidence in a manner sufficient to cure

any conceivable deficiency in the direct evidence.

Accordingly, we affirm the convictions.

Affirmed.

- 5 -