Gene Raymond Locke v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 5, 2022
• Docket: 0540213
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, O’Brien and Raphael UNPUBLISHED

Argued at Lexington, Virginia

GENE RAYMOND LOCKE MEMORANDUM OPINION * BY v. Record No. 0540-21-3 JUDGE ROBERT J. HUMPHREYS APRIL 5, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY John T. Cook, Judge

Sidney H. Kirstein for appellant.

Rebecca M. Garcia, Assistant Attorney General (Mark R. Herring, 1 Attorney General, on brief), for appellee.

Gene Raymond Locke was indicted and subsequently convicted, following a bench trial,

on two counts of shoplifting by altering price tags, third offense, in violation of Code

§§ 18.2-103 and 18.2-104. (Code § 18.2-104 was repealed on July 1, 2021). Locke appeals his

convictions, asserting that the evidence was insufficient to support both convictions. We affirm

in part and reverse in part.

BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.

Commonwealth, 295 Va. 469, 472-73 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381

(2016)). In doing so, we discard any of Locke’s conflicting evidence, and regard as true all

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022. credible evidence favorable to the Commonwealth and all inferences that may reasonably be

drawn from that evidence. Id. at 473. At a bench trial, the following evidence was presented.

On April 23, 2020, Walmart asset protection employee Kyle Heuling noticed Locke and a

woman “in the store in the clearance aisle taking off the clearance stickers.” Heuling did not see

the couple place the clearance stickers on other items, but he “believe[d] they were going to put

[the stickers] on other items.” As a result of his suspicions, Heuling followed Locke and his

female companion around Walmart and ultimately to the self-checkout area. Heuling watched

the couple begin to ring up items but was called away to “apprehend someone else that was

stealing right next to [him],” and did not witness the rest of the transaction.

Later, Heuling decided to review the couple’s transaction via security video footage from

Walmart’s in-store cameras installed at self-checkout kiosks. Using the video footage and the

transaction receipt, Heuling determined that Locke left the store on April 23 without paying for

some items and without paying full price for other items. At the bench trial, the Commonwealth

entered the relevant security footage into evidence but did not enter the receipt. Heuling testified

that the difference between the value of the merchandise and the amount paid was $141.19. 2

Using the credit card information from Locke’s April 23 transaction, Heuling searched

Walmart’s records and discovered that Locke, along with the same female companion, had

purchased items with the same card on April 14, 2020. Heuling reviewed the security footage

from April 14 as well as Locke’s receipt from that transaction, and Heuling testified that the

transaction involved “multiple clearance stickers.” Again, the Commonwealth entered the video

into evidence but did not introduce the relevant receipt.

Security video footage from a self-checkout machine shows that on April 14, Locke

placed a product called “JB Weld” and two sodas next to the checkout machine. His female

2 The record does not explain or illustrate how Heuling calculated a loss of $141.19. -2- companion is pictured in the video holding a steering wheel cover and shorts, both of which had

visible yellow clearance stickers. The woman scanned the shorts; Heuling testified that the

shorts should have rung up for $14.50 but instead rang up as automobile markers for $2.50. The

woman rang up the steering wheel cover but later voided it and did not remove it from the store.

The couple scanned the JB Weld, which Heuling testified rang up for $0.50 but should have rung

up for $5.57.

Finally, the video also shows that the couple placed two bottles of soda next to the

register. It is unclear from the video whether the woman scanned both or only one of the soda

bottles before placing both bottles in a bag. The women then used a card to pay for and complete

the transaction. Heuling testified that the difference between the amount the couple paid and the

amount that they should have paid on April 14 was $20.27. 3 A second video clip introduced by

the Commonwealth showed Locke leaving the store with the above-listed items.

Heuling testified that he did not see Locke or his companion switch any stickers on April

14, and neither party presented additional witnesses after Heuling testified. The following quote

constituted the entirety of Locke’s closing argument:

Your Honor, if it please the Court, you’ve seen the evidence and the question is whether the fella in the video was my client. That’s the issue and whether you can find that beyond a reasonable doubt. Judge, I would say on the 14th there were some tags that were wrong. There’s no evidence of how they became wrong. Perhaps [you] could infer that they switched them out but you have no evidence of that but they were wrong according to the testimony of Mr. Heuling.

Noting that it had “been able to watch the[] videos and listen to . . . the Commonwealth’s witness

who [it] found to be credible,” the circuit court found Locke guilty of both charges. The circuit

court did not separately discuss the April 14 and April 23 events. By final order of May 5, 2021,

3 The record does not explain or illustrate how Heuling calculated a loss of $20.27. -3- the circuit court sentenced Locke to three years’ incarceration with two years and five months

suspended for the April 14 offense, and three years’ incarceration with two years and six months

suspended for the April 23 offense, for a total active sentence of thirteen months. Locke timely

appealed.

ANALYSIS

I. APPEAL FROM APRIL 23 CONVICTION WAIVED

Locke challenges the sufficiency of the evidence underlying both his convictions. The

Commonwealth contends that Locke procedurally defaulted his challenge to the conviction for

the April 23 offense by not challenging it in the circuit court.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “Rule 5A:18 requires a

litigant to make timely and specific objections, so that the trial court has ‘an opportunity to rule

intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’” Brown

v. Commonwealth, 279 Va. 210, 217 (2010) (quoting West v. Commonwealth, 43 Va. App. 327,

337 (2004)). A defendant may preserve a sufficiency-of-the-evidence challenge through his

closing argument during a bench trial. See Thorne v. Commonwealth, 66 Va. App. 248, 250 n.1

(2016); see also Commonwealth v. Herring, 288 Va. 59, 67-68 (2014).

“In order to preserve an issue for appeal, ‘an objection must be timely made and the

grounds stated with specificity.’” McDuffie v. Commonwealth, 49 Va. App. 170, 177 (2006)

(quoting Marlowe v. Commonwealth, 2 Va. App. 619, 621 (1986)). “Not just any objection will

do. It must be both specific and timely—so that the trial judge would know the particular point

being made in time to do something about it.” Bethea v. Commonwealth, 297 Va. 730, 743

(2019) (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)).

-4- Locke’s closing argument at trial did not specifically address the April 23 offense.

Locke’s counsel vaguely referenced “the video” without specifying which of the videos he was

referring to and then argued that there was no evidence that Locke switched price tags on April

14. It is hard to construe counsel’s argument as pertaining to anything but the April 14 offense.

Counsel’s argument was thus insufficiently specific to preserve his appellate arguments related

to the April 23 offense. Locke does not invoke the good cause or ends of justice exceptions to

Rule 5A:18, and the Court declines to apply the exceptions sua sponte. See Edwards v.

Commonwealth, 41 Va. App. 752, 761 (2003) (en banc). Locke has therefore waived appellate

review of his conviction for the events of April 23, 2020, and we affirm the circuit court’s

judgment.

II. STANDARD OF REVIEW

The parties disagree as to the standard of review applicable to Locke’s assignment of

error for his conviction regarding the events of April 14, 2020. Ordinarily, “[w]hen reviewing

the sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will not

be disturbed unless it is plainly wrong or without evidence to support it.’” Yoder v.

Commonwealth, 298 Va. 180, 181-82 (2019) (quoting Smith v. Commonwealth, 296 Va. 450, 460

(2018)). “In such cases, ‘[t]he Court does not ask itself whether it believes that the evidence at

the trial established guilt beyond a reasonable doubt.’” Secret v. Commonwealth, 296 Va. 204,

228 (2018) (alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)).

“Rather, the relevant question is, upon review of the evidence in the light most favorable to the

prosecution, whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Id. (quoting Pijor, 294 Va. at 512). “If there is evidentiary

support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment,

even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’”

-5- Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67

Va. App. 273, 288 (2017)).

Locke argues that the sole evidence underlying his conviction for the April 14 offense is

the security video and that this Court should therefore review the conviction “de novo . . . with

all facts and circumstances concerning guilt being viewed in the light most favorable to the

Commonwealth so long as the totality of the evidence would establish all the essential elements

of the alleged crime beyond a reasonable doubt to a rational fact finder.” Locke’s reply brief

clarifies that he desires this Court to make de novo findings concerning the content of the April

14 security video.

Locke relies on Watson-Scott v. Commonwealth, 298 Va. 251, 255 (2019), for the

proposition that where “the essential facts are undisputed” and the Court is presented with the

question of how to apply the law to the facts, the Court applies de novo review. In Watson-Scott,

the essential facts were undisputed because it was uncontested that the defendant had fired

multiple shots from a handgun down a city street. Id. As a result, whether and how the

defendant fired the gun—factual determinations—were not at issue; on appeal, the Virginia

Supreme Court was only tasked with determining whether the undisputed facts were sufficient to

meet the legal standard for malice, a pure question of law. 4 See id. at 257-58.

Unlike in Watson-Scott, in this case, the essential facts are not undisputed. The circuit

court in its role as factfinder decided whether the video evidence and Heuling’s testimony proved

that Locke altered the price tags on goods for sale on April 14. On appeal, Locke argues that the

4 In a similar case, Kim v. Commonwealth, 293 Va. 304, 310-11 (2017), the issue on appeal was whether the road on which the defendant was found was a “public highway” as defined by Code § 46.2-100. In Kim, just as in Watson-Scott, the essential facts of the case were not in dispute. See id. at 311-12. Because the essential facts were undisputed, the Virginia Supreme Court had to decide whether the roadway on which Kim was found met the statutory definition of “highway,” a pure question of law. See id. As explained above, in the present case, there were facts in dispute. -6- evidence did not prove that he altered the price tags on goods. Whether Locke altered the tags of

certain goods is a question of fact to be determined by the evidence, not a question of law. We

are bound by the circuit court’s factual determinations unless there is insufficient evidence to

support them, or they are plainly wrong. See Jennings v. Commonwealth, 67 Va. App. 620, 625

(2017); Code § 8.01-680.

Locke next asks that we give no deference to the circuit court’s findings of fact and

instead draw our own factual determinations from the video. Such a request is not supported by

precedent. See Commonwealth v. Hilliard, 270 Va. 42, 50-51 (2005) (holding that this Court

erred by making factual findings based on a defendant’s tone, voice inflections, and demeanor in

a video submitted as evidence at trial). We are bound by our earlier precedent establishing that

in a bench trial, the circuit court judge’s “major role” is determining the facts of the case. See

Purvy v. Commonwealth, 59 Va. App. 260, 272 (2011). Further, this Court regards the circuit

court’s determination of the facts of the case “with the highest degree of appellate deference.”

See id. (quoting Thomas v. Commonwealth, 48 Va. App. 605, 608 (2006)). Accordingly, we will

not disturb the circuit court’s ruling unless its judgment is plainly wrong or without evidence to

support it. See Jennings, 67 Va. App. at 625.

III. WHETHER THE EVIDENCE WAS SUFFICIENT

Turning now to the merits, Code § 18.2-103 provides, in pertinent part:

Whoever, without authority, with the intention of converting goods or merchandise to his own or another’s use without having paid the full purchase price thereof, or of defrauding the owner of the value of the goods or merchandise, (i) willfully conceals or takes possession of the goods or merchandise of any store or other mercantile establishment, or (ii) alters the price tag or other price marking on such goods or merchandise, or transfers the goods from one container to another, or (iii) counsels, assists, aids or abets another in the performance of any of the above acts . . . shall be guilty of petit larceny.

-7- The question we must answer is whether a reasonable factfinder could find that Locke is

guilty of altering price tags beyond a reasonable doubt. We have held that the evidence

supporting a criminal conviction must exclude every reasonable hypothesis of innocence that

flows from the evidence. See Jennings, 67 Va. App. at 626 (quoting Thorne, 66 Va. App. at

254). If a reasonable factfinder could have rejected Locke’s defense theories and found him

guilty of altering price tags beyond a reasonable doubt, we must affirm. See id.

Here, the evidence related to the April 14 transaction, taken in the light most favorable to

the Commonwealth, establishes only that some items had somehow been improperly tagged with

a clearance sticker. No evidence was introduced in the circuit court regarding how the items in

the April 14 transaction came to be improperly priced. Significantly, no one saw Locke or his

female companion removing clearance stickers or placing clearance stickers on full-price items

on April 14. We hold that no reasonable factfinder could have found beyond a reasonable doubt

that Locke altered the price tags on the scant amount of evidence introduced by the

Commonwealth. The Commonwealth, after all, bears the burden of proving a defendant’s guilt

beyond a reasonable doubt. See Williams v. Commonwealth, 71 Va. App. 462, 485 (2020)

(quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)). The Commonwealth failed to

disprove any credible hypotheses of innocence flowing from the evidence. See Hamilton v.

Commonwealth, 16 Va. App. 751, 755 (1993) (“The Commonwealth need only exclude

reasonable hypotheses of innocence that flow from the evidence, not those that spring from the

imagination of the defendant.”). “When examining an alternate hypothesis of innocence, the

question is not whether ‘some evidence’ supports the hypothesis, but whether a rational

factfinder could have found that the incriminating evidence renders the hypothesis of innocence

unreasonable.” Williams, 71 Va. App. at 485 (quoting Vasquez v. Commonwealth, 291 Va. 232,

250 (2016)). For example, the Commonwealth did not address whether a store employee may

-8- have erroneously placed the clearance stickers on full-price items. We view the evidence and all

reasonable inferences to be drawn from it in the light most favorable to the Commonwealth, but

here, no evidence was introduced related to how the incorrect stickers were placed. See Hunley

v. Commonwealth, 30 Va. App. 556, 563 (1999). Even in the light most favorable to the

Commonwealth, the only inference that can be reached from the record before us is that at some

point, incorrect clearance stickers were placed on a few items that Locke and his companion

purchased on April 14, 2020, which is insufficient to convict Locke beyond a reasonable doubt.

The Commonwealth argues that even if the evidence was insufficient to support a

conviction under Code § 18.2-103(ii) for altering price tags, Locke should still be convicted

under Code § 18.2-103(i) for concealing or taking possession of merchandise because the

security video appeared to show that Locke and his companion also removed a bottle of soda

from the store without scanning it on the register. See Code § 18.2-103(i) (prohibiting willfully

concealing or taking possession of goods or merchandise with the intent to convert them to one’s

own or another’s use without having paid the full purchase price).5 We cannot agree. To the

point that the Commonwealth urges us to decide this case under the “right result for the wrong

reason” doctrine, we decline to do so because “cases are only proper for application of the right

result for the wrong reason doctrine when the evidence in the record supports the new argument

on appeal, and the development of additional facts is not necessary.” Perry v. Commonwealth,

280 Va. 572, 579 (2010). At trial, the Commonwealth never raised the issue of whether Locke

stole the bottle of soda nor was there any testimony about whether Locke properly scanned the

bottle of soda. As noted, no receipts or other documentation memorializing Locke’s purchases

were introduced. We review video evidence only for legal sufficiency and do not make de novo

5 Locke was indicted under Code § 18.2-103 with no further specificity related to the statute’s subsections. -9- factual conclusions from such video evidence, so it is beyond our purview to determine whether

the video showed a bottle of soda being taken. See Hilliard, 270 Va. at 49-51. Because

determining whether Locke concealed or took possession of a bottle of soda with the intent to

defraud the store of its value would require the development of new facts, we do not address the

issue on appeal.

CONCLUSION

Locke waived his assignment of error on appeal for his conviction for the events of April 23;

however, the circuit court’s judgment related to the April 14 conviction was plainly wrong and

without evidence to support it. Accordingly, we affirm Locke’s conviction for April 23 and reverse

his conviction for April 14.

Affirmed in part and reversed in part.

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