Johnson v. Commonwealth

543 S.E.2d 605, 35 Va. App. 134, 2001 Va. App. LEXIS 133
CourtCourt of Appeals of Virginia
DecidedMarch 20, 2001
DocketRecord No. 1354-00-3
StatusPublished
Cited by6 cases

This text of 543 S.E.2d 605 (Johnson v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Commonwealth, 543 S.E.2d 605, 35 Va. App. 134, 2001 Va. App. LEXIS 133 (Va. Ct. App. 2001).

Opinion

HUMPHREYS, Judge.

Carol Bowyer Johnson appeals her conviction, after a bench trial, of misdemeanor concealment of merchandise, in violation of Code § 18.2-103. Johnson argues the evidence was insufficient to support the conviction.

I. Background

Between the months of August and November, 1999, security personnel of a Lynchburg Wal-Mart store observed Johnson in the store on several occasions, behaving suspiciously. On August 16, 17, 22, and 31, October 12 and 22, and November 15 and 22, respectively, security personnel observed Johnson, by video surveillance, enter the cigarette aisle of the store, pick up several cartons of cigarettes, place them in her shopping cart and cover them with items of clothing and other items she already had in her cart.1

On August 31, after viewing Johnson’s behavior on video, security officer Andrew Hill went to the main floor and followed Johnson after she left the cigarette aisle. Johnson had a male companion with her at the time. Hill followed the two to the toy department, where he observed Johnson “taking the cartons of cigarettes and ... stacking them behind a rack of toy boxes,” and “fixing the boxes where the cigarettes could not be seen.” He then observed Johnson push her cart to the lawn and garden department, leave the cart with the other merchandise still in it, and exit the store with her companion.

On an unspecified date in October, Hill again observed Johnson’s behavior on video and followed her to the back of the store to the “same aisle.” He again observed her taking [137]*137the cigarettes out of the cart and putting them behind “all the boxes of toys and concealing them.” Johnson then pushed her cart to the pet department, left her cart by the last aisle, and exited the store through the lawn and garden department.

On another occasion in October, Johnson approached Angela Culpepper, a clerk in the lawn and garden department, and “asked her questions.” Culpepper asked Johnson to wait a moment. When Culpepper returned her attention to Johnson, she had abandoned another shopping cart full of merchandise and left the store. “Around October 22,1999,” Culpepper had another occasion to observe Johnson. On this occasion, Johnson asked Culpepper some questions “about plants.” When Culpepper “turned [her] back,” Johnson again abandoned her cart of merchandise and left the store. Culpepper testified that she observed “a big bulk” under Johnson’s sweatshirt when Johnson first approached her.2

On November 15, 1999, Hill again observed Johnson on video. This time he saw her take a stack of cigarette cartons, placing some under her arm and holding some in her hands, and walk out of view of the camera. Hill followed Johnson to the “same aisle of toys.” He testified that Johnson seemed “spooked” and came out of the aisle and walked around the store, with the cigarettes now in her shopping cart, covered by clothing items. Johnson went to the front of the store and walked out of the store, leaving her cart full of clothing and cartons of cigarettes by the main doors.

Finally, on November 22, 1999, security officer Jerry Thomas observed Johnson engaging in the same behavior on video and followed her out of the cigarette area to the “same aisle” in the toy department. He observed Johnson open a carton of the cigarettes and walk to another aisle. At that point, a woman, who Thomas testified he thought was Johnson’s mother, walked up and looked at Thomas, then at Johnson. The two women proceeded to the grocery department, left the [138]*138shopping cart in the grocery main aisle, and left the store. Thomas found the cigarettes and other items in the cart and followed Johnson and her companion out of the store. “About halfway down the parking lot [Johnson] asked [Thomas] if [he] had a fucking problem.” She continued toward a car and got in with the other woman. Johnson “flipped [Thomas] the finger through the window of the car and yelled ‘you fat, mother fucker.’ ” Thomas took down Johnson’s license plate number and contacted the police.

On March 6, 2000, Johnson was indicted on eight (8) counts of concealment, third or subsequent offense, in violation of Code §§ 18.2-103 and 18.2-104. After the presentation of evidence at the May 8, 2000 trial, the trial court dismissed seven of the eight charges and convicted Johnson of only one count of misdemeanor concealment for her actions on August 31,1999. The trial judge stated the following:

Miss Johnson, I am going to find as fact and law that the Commonwealth has proven beyond a reasonable doubt that on August 31st, 1999, you concealed merchandise within the meaning of the statute ..., in other words, with intent to defraud Wal-Mart.
*******
There’s just no explanation for you concealing, first, in your cart and then behind the toys.

On appeal, Johnson contends the evidence was insufficient to establish that she concealed the cigarettes within the meaning of the statute. As a result, she argues there was no evidence from which the court could infer her intent to defraud Wal-Mart of the value of the goods.3

II. Analysis

“On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable [139]*139inferences fairly deducible therefrom.” Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). When the sufficiency of the evidence is challenged on appeal, “it is our duty to look to that evidence which tends to support the verdict and to permit the verdict to stand unless plainly wrong.” Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961). “The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.” Martin, 4 Va.App. at 443, 358 S.E.2d at 418.

To convict an accused for unlawful concealment in violation of Code § 18.2-103, “[t]he Commonwealth must prove (1) a willful concealment of merchandise, done (2) with the intent to convert the merchandise or to defraud the storekeeper.” Snead v. Commonwealth, 11 Va.App. 643, 646, 400 S.E.2d 806, 807 (1991).4 The willful concealment of goods while still on the premises is prima facie evidence of intent to defraud the owner of the value of the goods or merchandise at issue. Code § 18.2-103.

Johnson argues that because no evidence proved that she concealed the items on her person, her actions did not fall within the purview of the statute. Although it appears that no reported appellate decision has applied the concealment statute to a case where an item was concealed somewhere other [140]*140than on the defendant’s person, we disagree with Johnson’s contention.

The plain language of the statute does not require proof of concealment on the person.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rhoda Faye Welch v. Commonwealth of Virginia
Court of Appeals of Virginia, 2024
Michael Blake Vaughan v. Commonwealth of Virginia
Court of Appeals of Virginia, 2017
Earl Steven Floyd v. Commonwealth
Court of Appeals of Virginia, 2003
Johnson v. Commonwealth
555 S.E.2d 419 (Court of Appeals of Virginia, 2001)
Carol Bowyer Johnson v. Commonwealth of Virginia
Court of Appeals of Virginia, 2001

Cite This Page — Counsel Stack

Bluebook (online)
543 S.E.2d 605, 35 Va. App. 134, 2001 Va. App. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-commonwealth-vactapp-2001.