COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole Argued at Richmond, Virginia
EMILY REGINA BENTLEY MEMORANDUM OPINION * BY v. Record No. 1569-97-2 JUDGE JOSEPH E. BAKER MAY 5, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY William L. Wellons, Judge J. William Watson, Jr. (Watson & Nelson, P.C., on brief), for appellant.
Richard B. Campbell, Assistant Attorney General (Richard Cullen, Attorney General; John K. Byrum, Jr., Assistant Attorney General, on brief), for appellee.
Emily Regina Bentley (appellant) appeals from her bench
trial conviction by the Circuit Court of Halifax County (trial
court) for embezzlement. She contends that the evidence is
insufficient to prove perishable merchandise she took from her
employer was valued at $200 or more and that the trial court
erred when it considered the retail value of the merchandise
taken rather than the wholesale price of perishable goods.
Viewing the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom, the record discloses that in August 1996,
appellant was working as a deli manager at the Fresh & Friendly
food store in South Boston. Without the knowledge of store * Pursuant to Code § 17-116.010 this opinion is not designated for publication. manager Gary Jones, appellant simultaneously operated her own
bakery in nearby Brookneal.
In August 1996, Fresh & Friendly had an established policy
for the handling of out-of-date bakery goods. Each item was
marked with a sale date and was kept on the shelves for sale
through that date. On the morning following expiration of the
sale date, the items were removed from the sales floor and placed
in the back of the store for donation to the Patrick Henry Boys
Home. The store donated only out-of-date items to the Boys Home,
and if the Boys Home staff did not retrieve the donated items
within a few days, the store discarded them. Between August 12 and 19, 1996, by the method described
below, appellant removed a quantity of baked goods from Fresh &
Friendly. With the aid of Julia Gravitt, who was an employee of
appellant's Brookneal store, and Albert Seamster, appellant
filled a shopping cart with bread and pastry products from the
store floor and allowed Gravitt and Seamster to remove them from
the store without payment or authorization. On two occasions,
Seamster and Gravitt took two carts of goods, one that appellant
filled with items from the floor and another which had already
been filled with in-date items. On at least one occasion, police
saw appellant take the goods to her Brookneal bakery.
On Monday, August 12, Pamela Moore, the produce manager,
noticed in the back of the store a grocery cart filled to the top
with baked goods. She examined ten to twelve items in the cart
- 2 - and determined they were "in date"--dated August 12. Later that
morning, Seamster entered the store and helped appellant fill a
second cart with in-date items from the sales tables. Seamster
and Gravitt then removed the two full carts from the store. They
left behind a box of out-of-date items being saved for the Boys
Home.
On August 14, Moore again found a cart containing goods
dated for that day in the back of the store. Seamster and
Gravitt again came to the store and, with appellant's help,
filled a second cart with baked goods from the floor in the same
way as before. One of the carts was "heaping full." Again,
Seamster and Gravitt took the goods and left without paying. On August 15 and 16, appellant repeated this process with
the aid of Seamster and Gravitt, but filled only one cart on each
of those dates. On August 16, the cart they filled was "heaping
over with . . . stuff." Similar events occurred on August 17.
When Fresh & Friendly employees observed appellant, Gravitt
and Seamster removing the goods in the described manner, they
initially thought Gravitt and Seamster were from the Boys Home.
They reported the suspicious events to store manager Jones, whose
suspicions were heightened on August 19, when he personally
observed a cart at the rear of the store filled two-thirds full
with current-date items. Jones inventoried the items in the cart
and found their sales prices totaled $142. Later that morning,
Seamster and a woman arrived at the store, picked up the cart,
- 3 - loaded its contents into a gray van, drove off without paying for
the products, and met at an apartment complex where they
transferred the goods into appellant's car. Appellant then drove
with the woman to appellant's Brookneal bakery store where they
unloaded the items. At trial, Jones identified the items as
those he had inventoried at the rear of Fresh & Friendly on the
morning of August 19.
Jones testified on cross-examination that, of the items in
the cart on August 19, about half of them were actually made in
the store and were priced with a "built in profit margin." If
the items were not sold by the end of the day on their sale date,
they could only be thrown away or given away, and their only
"value" at that point "was a loss for the store." The store
"[kept] a record" of "what they pulled [from the shelves] and
what was going to be thrown away." Code § 18.2-111 describes acts that constitute embezzlement
and declares such actors to be guilty of larceny. A person who takes personal property from the possession of another without the owner's consent and with intent to deprive him of possession permanently is guilty of common law larceny. A person entrusted with possession of another's personalty who converts such property to his own use or benefit is guilty of the statutory offense of embezzlement.
Smith v. Commonwealth, 222 Va. 646, 649, 283 S.E.2d 209, 210
(1981) (citation omitted). Proof was adduced that on several
days during a period of one week, August 12 to 19, 1996,
- 4 - appellant and her agents placed current-date bread products owned
by Fresh & Friendly in a cart and, without paying for them or
obtaining permission, removed the products from Fresh & Friendly
and loaded them into a van. On at least one occasion, the
products were transferred to appellant's separately owned and
operated bakery. When these events occurred, appellant was
employed by Fresh & Friendly as a deli manager. Therefore, the
evidence proved that appellant was guilty of embezzlement,
punishable as larceny.
I. Value Equal to or Greater than $200
Appellant argues that the goods were not shown to have any
value or, in the alternative, were not proved to have a value of
at least $200 so as to constitute grand larceny.
The record shows that a store manager discovered the method
used by appellant to embezzle the products and on August 19
inventoried the products that had been loaded in a cart placed at
the rear of the store. At trial, he gave the products' value as 1 $142. Shortly thereafter, two of appellant's agents removed the
products from the store, and appellant and one of those agents
subsequently transported them to appellant's store. There was
evidence that on five other occasions between August 12 and
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole Argued at Richmond, Virginia
EMILY REGINA BENTLEY MEMORANDUM OPINION * BY v. Record No. 1569-97-2 JUDGE JOSEPH E. BAKER MAY 5, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY William L. Wellons, Judge J. William Watson, Jr. (Watson & Nelson, P.C., on brief), for appellant.
Richard B. Campbell, Assistant Attorney General (Richard Cullen, Attorney General; John K. Byrum, Jr., Assistant Attorney General, on brief), for appellee.
Emily Regina Bentley (appellant) appeals from her bench
trial conviction by the Circuit Court of Halifax County (trial
court) for embezzlement. She contends that the evidence is
insufficient to prove perishable merchandise she took from her
employer was valued at $200 or more and that the trial court
erred when it considered the retail value of the merchandise
taken rather than the wholesale price of perishable goods.
Viewing the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom, the record discloses that in August 1996,
appellant was working as a deli manager at the Fresh & Friendly
food store in South Boston. Without the knowledge of store * Pursuant to Code § 17-116.010 this opinion is not designated for publication. manager Gary Jones, appellant simultaneously operated her own
bakery in nearby Brookneal.
In August 1996, Fresh & Friendly had an established policy
for the handling of out-of-date bakery goods. Each item was
marked with a sale date and was kept on the shelves for sale
through that date. On the morning following expiration of the
sale date, the items were removed from the sales floor and placed
in the back of the store for donation to the Patrick Henry Boys
Home. The store donated only out-of-date items to the Boys Home,
and if the Boys Home staff did not retrieve the donated items
within a few days, the store discarded them. Between August 12 and 19, 1996, by the method described
below, appellant removed a quantity of baked goods from Fresh &
Friendly. With the aid of Julia Gravitt, who was an employee of
appellant's Brookneal store, and Albert Seamster, appellant
filled a shopping cart with bread and pastry products from the
store floor and allowed Gravitt and Seamster to remove them from
the store without payment or authorization. On two occasions,
Seamster and Gravitt took two carts of goods, one that appellant
filled with items from the floor and another which had already
been filled with in-date items. On at least one occasion, police
saw appellant take the goods to her Brookneal bakery.
On Monday, August 12, Pamela Moore, the produce manager,
noticed in the back of the store a grocery cart filled to the top
with baked goods. She examined ten to twelve items in the cart
- 2 - and determined they were "in date"--dated August 12. Later that
morning, Seamster entered the store and helped appellant fill a
second cart with in-date items from the sales tables. Seamster
and Gravitt then removed the two full carts from the store. They
left behind a box of out-of-date items being saved for the Boys
Home.
On August 14, Moore again found a cart containing goods
dated for that day in the back of the store. Seamster and
Gravitt again came to the store and, with appellant's help,
filled a second cart with baked goods from the floor in the same
way as before. One of the carts was "heaping full." Again,
Seamster and Gravitt took the goods and left without paying. On August 15 and 16, appellant repeated this process with
the aid of Seamster and Gravitt, but filled only one cart on each
of those dates. On August 16, the cart they filled was "heaping
over with . . . stuff." Similar events occurred on August 17.
When Fresh & Friendly employees observed appellant, Gravitt
and Seamster removing the goods in the described manner, they
initially thought Gravitt and Seamster were from the Boys Home.
They reported the suspicious events to store manager Jones, whose
suspicions were heightened on August 19, when he personally
observed a cart at the rear of the store filled two-thirds full
with current-date items. Jones inventoried the items in the cart
and found their sales prices totaled $142. Later that morning,
Seamster and a woman arrived at the store, picked up the cart,
- 3 - loaded its contents into a gray van, drove off without paying for
the products, and met at an apartment complex where they
transferred the goods into appellant's car. Appellant then drove
with the woman to appellant's Brookneal bakery store where they
unloaded the items. At trial, Jones identified the items as
those he had inventoried at the rear of Fresh & Friendly on the
morning of August 19.
Jones testified on cross-examination that, of the items in
the cart on August 19, about half of them were actually made in
the store and were priced with a "built in profit margin." If
the items were not sold by the end of the day on their sale date,
they could only be thrown away or given away, and their only
"value" at that point "was a loss for the store." The store
"[kept] a record" of "what they pulled [from the shelves] and
what was going to be thrown away." Code § 18.2-111 describes acts that constitute embezzlement
and declares such actors to be guilty of larceny. A person who takes personal property from the possession of another without the owner's consent and with intent to deprive him of possession permanently is guilty of common law larceny. A person entrusted with possession of another's personalty who converts such property to his own use or benefit is guilty of the statutory offense of embezzlement.
Smith v. Commonwealth, 222 Va. 646, 649, 283 S.E.2d 209, 210
(1981) (citation omitted). Proof was adduced that on several
days during a period of one week, August 12 to 19, 1996,
- 4 - appellant and her agents placed current-date bread products owned
by Fresh & Friendly in a cart and, without paying for them or
obtaining permission, removed the products from Fresh & Friendly
and loaded them into a van. On at least one occasion, the
products were transferred to appellant's separately owned and
operated bakery. When these events occurred, appellant was
employed by Fresh & Friendly as a deli manager. Therefore, the
evidence proved that appellant was guilty of embezzlement,
punishable as larceny.
I. Value Equal to or Greater than $200
Appellant argues that the goods were not shown to have any
value or, in the alternative, were not proved to have a value of
at least $200 so as to constitute grand larceny.
The record shows that a store manager discovered the method
used by appellant to embezzle the products and on August 19
inventoried the products that had been loaded in a cart placed at
the rear of the store. At trial, he gave the products' value as 1 $142. Shortly thereafter, two of appellant's agents removed the
products from the store, and appellant and one of those agents
subsequently transported them to appellant's store. There was
evidence that on five other occasions between August 12 and
August 19, similar, currently dated merchandise had been removed
in equal or greater quantities. We hold that sufficient evidence
1 A lower sum of $103 may have been claimed in a companion case; however, the evidence in this case proved a value of $142.
- 5 - was presented from which the trier of fact could infer that the
like goods taken on separate days during the one-week period
were, at a minimum, of like value, totaling a sum in excess of
$200 so as to sufficiently prove the taking was felonious, in
violation of Code §§ 18.2-95 and 18.2-111.
II. Retail or Wholesale
Appellant asserts in the alternative that the value of
an embezzled product must be based upon its wholesale cost to
Fresh & Friendly rather than the retail selling price. We
disagree. The Commonwealth adduced evidence of the price for
which the products were offered for sale and for which a customer
may have purchased them. The value of property is measured as of
the time of the theft, and the original purchase price may be
admitted as evidence of current value. See Parker v.
Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997).
Moreover, the opinion testimony of the owner of a stolen item
generally is competent and admissible on the issue of the value
of that property, see id., and uncontradicted evidence that merchandise was displayed in a retail establishment for regular
sale at a marked price can serve as sufficient circumstantial
evidence of fair market value. See Boone v. Stacey, 597 F. Supp.
114, 117 (E.D. Va. 1984) (shoplifting offense). Although the
items appellant embezzled were perishable, the evidence proved
that the sale dates of the items had not passed when the items
were taken, making the retail sales price proper evidence of
- 6 - value.
For the reasons stated, the judgment of the trial court is
affirmed.
- 7 -