COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata Argued at Alexandria, Virginia
DONALD WAYNE SHEPHERD MEMORANDUM OPINION * BY v. Record No. 2728-97-4 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 10, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY Perry W. Sarver, Judge Designate S. Jane Chittom (Elwood E. Sanders, Jr.; Public Defender's Commission, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Donald Wayne Shepherd ("appellant") appeals his conviction
by bench trial for grand larceny under Code § 18.2-95, contending
that the evidence is insufficient to conclude beyond a reasonable
doubt that: 1) appellant took any property belonging to another,
and 2) the allegedly stolen property is worth at least $200. We
disagree and affirm.
We view the evidence in the light most favorable to the
Commonwealth, the party prevailing below, and grant all
reasonable inferences fairly deducible therefrom. Clifton v.
Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996)
(citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. S.E.2d 534, 537 (1975)). We will not reverse the trial court's
judgment unless it is plainly wrong or without evidence to
support it. Code § 8.01-680. The relevant facts, stated in the
light most favorable to the Commonwealth, follow.
On March 23, 1997, appellant broke into the residence of
Wayne and Kelly Rogers. As revealed by a videotape taken of the
incident, appellant approached the Rogers' residence with a
screwdriver in hand, knocked on the front door, and used the
screwdriver to open the door after nobody answered. Appellant
knew the Rogers were not present at the time he broke into their
home. Once appellant entered the Rogers' residence, the videotape
recorded sounds indicating that he rummaged through different
areas of the home, including the upstairs. Mr. Rogers recognized
the sound of appellant climbing the stairs to the second floor of
his home. After spending about six minutes inside the house,
appellant left through the front door holding only the
screwdriver in one hand. Appellant wore a jacket with multiple
pockets capable of concealing small objects.
Upon their return home the same day, Mr. and Mrs. Rogers
discovered the break-in, viewed the videotape, checked for
missing valuables, and initially discovered that a small Russian
lacquer box and a sapphire ring were missing. A number of days
later, Mrs. Rogers also discovered that a .22 caliber pistol with
a two-inch barrel was missing. Although the tape does not show
- 2 - appellant leave the Rogers' residence with these items in his
visible possession, they were all small enough to conceal within
ordinary clothing pockets.
As to the location of the Rogers' missing property at the
time of appellant's break-in, the Rogers ordinarily kept the
Russian box in their upstairs bedroom. Mr. Rogers last saw the
box there about a month, but no more than two months, before
appellant's break-in. Mrs. Rogers saw the box upstairs a week or
two before the break-in. Mrs. Rogers kept the sapphire ring in
her jewelry box upstairs and was certain of its presence there at
the time of appellant's break-in. As to the pistol, Mr. Rogers
bought it for Mrs. Rogers to carry in her purse, but she
preferred to keep it in a vinyl case in the couple's bedroom. Mr. Rogers purchased the Russian lacquer box, and fifty
other such boxes, through a business partner in Russia to sell in
the United States. This particular box cost over $300. Mr.
Rogers gave the box a wholesale value of $650 and a retail value
of $1,000. According to Mrs. Rogers, the box was exquisite, one
of a kind, and had appreciated in value since they acquired it.
I. SUFFICIENCY OF THE EVIDENCE AS TO LARCENY
While appellant concedes that he broke into the Rogers'
residence, he argues that the evidence does not prove beyond a
reasonable doubt that he removed property from it and fails to
exclude a reasonable hypothesis of innocence -- specifically,
that he left the residence without taking anything and that
- 3 - someone else is responsible for the property's disappearance.
The Code of Virginia states that any person who "commits
simple larceny not from the person of another of goods and
chattels of the value of $200 or more . . . shall be guilty of
grand larceny." Code § 18.2-95. "Larceny 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." Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d
443, 444 (1987) (citing Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)).
The Commonwealth has the burden to prove beyond a reasonable
doubt "that motive, time, place, means, and conduct concur in
pointing out the accused as the perpetrator of the crime." Inge
v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976).
It is well settled, however, that the Commonwealth is not
required to carry its burden of proof by direct evidence and that
circumstantial evidence is entitled to as much weight as direct
evidence, provided it is sufficiently convincing. Stamper v.
Commonwealth, 220 Va. 260, 272, 257 S.E.2d 808, 817 (1979), cert.
denied, 445 U.S. 972 (1980). "[I]t is within the province of the
[fact finder] to determine what inferences are to be drawn from
proved facts, provided the inferences are reasonably related to
those facts." Inge, 217 Va. at 366, 228 S.E.2d at 567-68.
Evidence is insufficient to support a conviction if it
fosters only a suspicion or probability of guilt. Hyde v.
- 4 - Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977). "The
evidence must be such that it excludes every reasonable
hypothesis of innocence." Id. (citing Smith v. Commonwealth, 192
Va. 453, 461, 65 S.E.2d 528, 533 (1951)). As such, when
circumstantial evidence demonstrates it is equally likely or more
likely that a reasonable hypothesis of innocence explains the
accused's conduct such evidence does not constitute proof beyond
a reasonable doubt. Littlejohn v. Commonwealth, 24 Va. App. 401,
414, 482 S.E.2d 853, 859 (1997) (citing Haywood v. Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609 (1995)).
In considering the sufficiency of circumstantial evidence,
the Supreme Court of Virginia has held that "[a] single
circumstance seldom justifies a finding of criminal agency."
Christian v. Commonwealth, 221 Va.
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata Argued at Alexandria, Virginia
DONALD WAYNE SHEPHERD MEMORANDUM OPINION * BY v. Record No. 2728-97-4 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 10, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY Perry W. Sarver, Judge Designate S. Jane Chittom (Elwood E. Sanders, Jr.; Public Defender's Commission, on briefs), for appellant.
Kathleen B. Martin, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Donald Wayne Shepherd ("appellant") appeals his conviction
by bench trial for grand larceny under Code § 18.2-95, contending
that the evidence is insufficient to conclude beyond a reasonable
doubt that: 1) appellant took any property belonging to another,
and 2) the allegedly stolen property is worth at least $200. We
disagree and affirm.
We view the evidence in the light most favorable to the
Commonwealth, the party prevailing below, and grant all
reasonable inferences fairly deducible therefrom. Clifton v.
Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996)
(citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. S.E.2d 534, 537 (1975)). We will not reverse the trial court's
judgment unless it is plainly wrong or without evidence to
support it. Code § 8.01-680. The relevant facts, stated in the
light most favorable to the Commonwealth, follow.
On March 23, 1997, appellant broke into the residence of
Wayne and Kelly Rogers. As revealed by a videotape taken of the
incident, appellant approached the Rogers' residence with a
screwdriver in hand, knocked on the front door, and used the
screwdriver to open the door after nobody answered. Appellant
knew the Rogers were not present at the time he broke into their
home. Once appellant entered the Rogers' residence, the videotape
recorded sounds indicating that he rummaged through different
areas of the home, including the upstairs. Mr. Rogers recognized
the sound of appellant climbing the stairs to the second floor of
his home. After spending about six minutes inside the house,
appellant left through the front door holding only the
screwdriver in one hand. Appellant wore a jacket with multiple
pockets capable of concealing small objects.
Upon their return home the same day, Mr. and Mrs. Rogers
discovered the break-in, viewed the videotape, checked for
missing valuables, and initially discovered that a small Russian
lacquer box and a sapphire ring were missing. A number of days
later, Mrs. Rogers also discovered that a .22 caliber pistol with
a two-inch barrel was missing. Although the tape does not show
- 2 - appellant leave the Rogers' residence with these items in his
visible possession, they were all small enough to conceal within
ordinary clothing pockets.
As to the location of the Rogers' missing property at the
time of appellant's break-in, the Rogers ordinarily kept the
Russian box in their upstairs bedroom. Mr. Rogers last saw the
box there about a month, but no more than two months, before
appellant's break-in. Mrs. Rogers saw the box upstairs a week or
two before the break-in. Mrs. Rogers kept the sapphire ring in
her jewelry box upstairs and was certain of its presence there at
the time of appellant's break-in. As to the pistol, Mr. Rogers
bought it for Mrs. Rogers to carry in her purse, but she
preferred to keep it in a vinyl case in the couple's bedroom. Mr. Rogers purchased the Russian lacquer box, and fifty
other such boxes, through a business partner in Russia to sell in
the United States. This particular box cost over $300. Mr.
Rogers gave the box a wholesale value of $650 and a retail value
of $1,000. According to Mrs. Rogers, the box was exquisite, one
of a kind, and had appreciated in value since they acquired it.
I. SUFFICIENCY OF THE EVIDENCE AS TO LARCENY
While appellant concedes that he broke into the Rogers'
residence, he argues that the evidence does not prove beyond a
reasonable doubt that he removed property from it and fails to
exclude a reasonable hypothesis of innocence -- specifically,
that he left the residence without taking anything and that
- 3 - someone else is responsible for the property's disappearance.
The Code of Virginia states that any person who "commits
simple larceny not from the person of another of goods and
chattels of the value of $200 or more . . . shall be guilty of
grand larceny." Code § 18.2-95. "Larceny 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." Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d
443, 444 (1987) (citing Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)).
The Commonwealth has the burden to prove beyond a reasonable
doubt "that motive, time, place, means, and conduct concur in
pointing out the accused as the perpetrator of the crime." Inge
v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976).
It is well settled, however, that the Commonwealth is not
required to carry its burden of proof by direct evidence and that
circumstantial evidence is entitled to as much weight as direct
evidence, provided it is sufficiently convincing. Stamper v.
Commonwealth, 220 Va. 260, 272, 257 S.E.2d 808, 817 (1979), cert.
denied, 445 U.S. 972 (1980). "[I]t is within the province of the
[fact finder] to determine what inferences are to be drawn from
proved facts, provided the inferences are reasonably related to
those facts." Inge, 217 Va. at 366, 228 S.E.2d at 567-68.
Evidence is insufficient to support a conviction if it
fosters only a suspicion or probability of guilt. Hyde v.
- 4 - Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977). "The
evidence must be such that it excludes every reasonable
hypothesis of innocence." Id. (citing Smith v. Commonwealth, 192
Va. 453, 461, 65 S.E.2d 528, 533 (1951)). As such, when
circumstantial evidence demonstrates it is equally likely or more
likely that a reasonable hypothesis of innocence explains the
accused's conduct such evidence does not constitute proof beyond
a reasonable doubt. Littlejohn v. Commonwealth, 24 Va. App. 401,
414, 482 S.E.2d 853, 859 (1997) (citing Haywood v. Commonwealth, 20 Va. App. 562, 567-68, 458 S.E.2d 606, 609 (1995)).
In considering the sufficiency of circumstantial evidence,
the Supreme Court of Virginia has held that "[a] single
circumstance seldom justifies a finding of criminal agency."
Christian v. Commonwealth, 221 Va. 1078, 1082, 277 S.E.2d 205,
208 (1981). Thus, evidence that shows a mere opportunity to
steal property is insufficient to prove larceny beyond a
reasonable doubt. Duncan v. Commonwealth, 218 Va. 545, 546-47,
238 S.E.2d 807, 808 (1977). Opportunity, however, is always a
relevant circumstance and, "when reinforced by other
incriminating circumstances, may be sufficient to establish
criminal agency." Christian, 221 Va. at 1082, 277 S.E.2d at 208.
See also Berryman v. Moore, 619 F. Supp. 853, 855-56 (1985).
We find that the trial court had sufficient evidence to
exclude every reasonable hypothesis of innocence and conclude
beyond a reasonable doubt that appellant took property belonging
- 5 - to the Rogers when he broke into their home on March 23, 1997.
The evidence shows that appellant approached a home he knew to be
vacant with a screwdriver in his hands. Using the screwdriver,
appellant broke through the home's locked front door without the
homeowner's permission or other justification. Upon gaining
entry, appellant rummaged through various parts of the home,
including the upstairs where the Rogers' missing property was
normally kept, for approximately six minutes. Although appellant
testified that he only walked through the foyer of the home and
denied taking property from the upstairs, the fact finder
expressly found that this evidence was not credible. Furthermore, the evidence of opportunity to steal is clear.
Mr. and Mrs. Rogers saw the Russian box and sapphire ring in
their respective storage places upstairs within a month prior to
the break-in. As to the pistol, Mrs. Rogers kept it in a case
beside her bed. Although appellant was not seen leaving the home
with these items, the evidence clearly shows that they could
easily fit within appellant's pockets. Based on this evidence,
the trier of fact reasonably concluded that appellant stole this
property when he broke into the Rogers' home and went upstairs.
II. SUFFICIENCY OF EVIDENCE AS TO THE VALUE OF STOLEN PROPERTY
Evidence as to the value of property is sufficient when it
allows the trier of fact "to intelligently and fairly estimate
with reasonable certainty the quantum of damages at the time of
the loss." Gertler v. Bowling, 202 Va. 213, 216, 116 S.E.2d 268,
- 6 - 270 (1960). Direct proof of the stolen object's value is not
essential if circumstantial evidence is available to prove the
requisite amount and exclude every reasonable hypothesis to the
contrary. Veney v. Commonwealth, 212 Va. 805, 806, 188 S.E.2d
80, 81 (1972). The value of a stolen object is its fair market
value at the time and place of the theft. Kern v. Commonwealth,
2 Va. App. 84, 88, 341 S.E.2d 397, 399-400 (1986). The
Commonwealth bears the burden of proving that the statutory
amount has been satisfied beyond a reasonable doubt. Knight v.
Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983).
The opinion testimony of an owner as to the value of his
personal property is competent and admissible, regardless of the
owner's knowledge. Walls v. Commonwealth, 248 Va. 480, 482, 450
S.E.2d 363, 364 (1994). Even a nonexpert who does not own the
property in question may give opinion testimony as to its value,
provided he possesses sufficient knowledge or ample opportunity
to form a correct opinion. Id. at 483, 450 S.E.2d at 365.
In this case, the evidence was sufficient to conclude that
the stolen property's value was at least $200 as required by Code
§ 18.2-95. The Commonwealth's evidence regarding the original
purchase price and current value of the Russian box alone is
sufficient to satisfy this element. Mr. Rogers purchased the box
for over $300 and appraised its wholesale and retail value at
$650 and $1,000, respectively. According to Mrs. Rogers, the box
was in exquisite condition and had appreciated in value since its
- 7 - purchase. Thus, regardless of the value of the Rogers' ring and
pistol, there was sufficient evidence for the trier of fact to
convict appellant of grand larceny.
Affirmed.
- 8 -