Mario Cherome Briggs v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 30, 2001
• Docket: 2917992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Clements Argued at Richmond, Virginia

MARIO CHEROME BRIGGS MEMORANDUM OPINION * BY v. Record No. 2917-99-2 JUDGE JEAN HARRISON CLEMENTS JANUARY 30, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS John F. Daffron, Jr., Judge

William B. Bray (Perry & Bray, on brief), for appellant.

Amy L. Marshall, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Appellant, Mario Cherome Briggs, was convicted in a bench

trial of grand larceny in violation of Code § 18.2-95. On appeal

he contends the evidence was not sufficient to sustain the

conviction. We disagree and affirm the conviction.

As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.

Briggs claims that the Commonwealth failed to prove beyond

a reasonable doubt that he was guilty of grand larceny. His

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. argument in support of that claim is threefold. First, he

argues that the evidence presented at trial was insufficient to

show that the value of the clothing stolen from Hecht's

Department Store was $200 or more. Second, he contends that the

evidence was insufficient to establish that he possessed the

requisite intent and knowledge to commit the larceny of all five

items of merchandise, which would have been necessary to bring

the value of the merchandise stolen to $200 or more. Third, he

asserts that the evidence was insufficient to prove that the

taking of the subject merchandise occurred without the consent

or authority of the store, a necessary element of the offense of

larceny.

When the sufficiency of the evidence is challenged on

appeal, we must consider the evidence "in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Bright v. Commonwealth,

4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). In addition,

the "credibility of a witness, the weight accorded the

testimony, and the inferences to be drawn from proven facts are

matters solely for the factfinder's determination." Keyes v.

City of Virginia Beach, 16 Va. App. 198, 199, 428 S.E.2d 766,

767 (1993). Furthermore, a conviction will not be reversed

unless "it appears from the evidence that it is plainly wrong or

without evidence to support it." Sutphin v. Commonwealth, 1 Va.

App. 241, 243, 337 S.E.2d 897, 898 (1985).

- 2 - A. VALUE OF THE STOLEN MERCHANDISE

Appellant maintains that, because the stolen clothes could

have been on sale and thus not worth $200, the Commonwealth

failed to prove the offense of grand larceny.

Grand larceny consists of the theft not from the person of

another of goods and chattels valued at $200 or more. See Code

§ 18.2-95(ii). "The value of the goods specified in the statute

is an essential element of the crime, and the Commonwealth must

prove that element beyond a reasonable doubt." Walls v.

Commonwealth, 248 Va. 480, 481, 450 S.E.2d 363, 364 (1994).

"The value of the stolen property is measured as of the time of

the theft . . . ." Parker v. Commonwealth, 254 Va. 118, 121,

489 S.E.2d 482, 483 (1997).

Here, the Commonwealth presented evidence of the value of

the goods through the testimony of Albert Bell, the security

manager at the Hecht's store where the theft occurred. Bell,

who had the stolen merchandise with him in court, testified to

the value of the five items stolen based on the store's price

tags affixed to those items. They ranged in price from $31.99

to $49.99 and totaled $212.95 in value. A photograph of the

stolen goods was admitted into evidence in substitution for the

items themselves so that they could be returned to the store.

On cross-examination, Bell admitted that, if any of the

items were on sale at the time of the theft, their values would

have been less than the prices marked on the tags. The sale

- 3 - prices would have rung up on the register and would not have

been reflected on the tags themselves. Bell, however, was not

asked by the defense, and thus did not indicate, whether or not

the stolen items were on sale when the theft occurred.

Moreover, Briggs presented no other evidence to show that the

stolen items were on sale as of the time of the theft.

In Robinson v. Commonwealth, 258 Va. 3, 516 S.E.2d 475

(1999), the Supreme Court recognized an exception to the hearsay

rule allowing the admission in shoplifting cases of price tags

affixed to items of merchandise as evidence to prove the value

of that merchandise. "[S]uch evidence, when admitted," the

Court stated, "would suffice to make out a prima facie case of

an item's value [and] the accused would retain full opportunity

to cross-examine adverse witnesses and to present rebutting

evidence on the issue of value." Id. at 10, 516 S.E.2d at 479.

Applying this principle, we find that the Commonwealth's

evidence based on the price tags affixed to the stolen items in

this case was sufficient to make out a prima facie case of the

value of the stolen merchandise. As Briggs presented no

evidence to rebut the Commonwealth's prima facie case of the

stolen merchandise's value, we find that the evidence presented

was sufficient to prove that the value of the items was $200 or

more.

- 4 - B. APPELLANT'S INVOLVEMENT IN THE LARCENY

Appellant also maintains that the evidence presented by the

Commonwealth was insufficient to prove that he actually stole

the merchandise in question. According to him, he was nothing

more than an innocent bystander while Alonzo Battle alone

concealed the five articles of clothing and removed them from

the store without paying for them. The evidence, he suggests,

proved only that he happened to be in the same section of the

store at the same time as Battle, a man he did not know, and

that he coincidentally handled two of the items eventually taken

by Battle.

He further argues that, even if the evidence was somehow

sufficient to show that he participated in the theft of the two

items he handled, it certainly did not establish that he had the

requisite knowledge and intent to steal all five items. The

evidence, he asserts, connects him at most to only two of the

stolen items and does not prove that he knew Battle was going to

steal any of the items rather than pay for them.

As appellant correctly notes, his conviction depended on

the Commonwealth being able to prove beyond a reasonable doubt

that he was guilty of the theft of all five articles of

clothing. Anything less than that would have brought the value

of the stolen property under $200 and would not have constituted

grand larceny.

- 5 - The Commonwealth asserts that its evidence clearly

established that Briggs was acting in concert with Battle and

that he aided and abetted Battle in the larceny of all of the

stolen clothing. As a principal in the second degree, he had,

the Commonwealth argues, the requisite knowledge and intent to

commit the crime.

"The intent required to commit larceny, the animus furandi,

is defined as the taking of property with the mental design of

permanently depriving the owner of possession of the goods.

'The animus furandi must accompany the taking, but the wrongful

taking of property in itself imports the animus furandi.'"

Saunders v. Commonwealth, 18 Va. App. 825, 828, 447 S.E.2d 526,

528 (1994) (citations omitted) (quoting Dunlavey v.

Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)).

Here, it is undisputed that Battle removed clothing

belonging to Hecht's Department Store from the store without

paying for it. Because it was Battle, rather than Briggs, who

physically completed the asportation of the clothing, the

Commonwealth had to prove that Briggs was a principal in the

second degree in order to obtain a conviction against him for

grand larceny. See Allard v. Commonwealth, 24 Va. App. 57, 62,

480 S.E.2d 139, 141 (1997) (noting that a principal in the

second degree may be convicted and punished as if a principal in

the first degree). To prove that Briggs was a principal in the

second degree, the Commonwealth had to demonstrate that Briggs

- 6 - was present during the offense and aided and abetted Battle in

the crime. See Rollston v. Commonwealth, 11 Va. App. 535, 539,

399 S.E.2d 823, 825 (1991).

In determining whether the Commonwealth's evidence was

sufficient to establish that Briggs aided and abetted Battle, we

are mindful that the mere presence and consent of the accused

are not enough to constitute "aiding and abetting." Id. It

must be shown that the alleged accomplice committed some overt

act of assistance or encouragement or that he shared the

criminal intent of the actual perpetrator. Id. However,

[n]otwithstanding these rules as to the nonliability of a passive spectator, it is certain that proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the [trier of fact] to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.

Foster v. Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 316

(1942) (quotations omitted).

Viewing the record with these principles in mind, we find

the evidence sufficient to prove that Briggs was indeed a

principal in the second degree in the commission of the subject

larceny. Bell, the store's security manager, observed via

closed-circuit television Battle and the accused interacting in

the young men's department of the store. He saw Briggs take a

red shirt off a rack and hand it to Battle. Battle then removed

- 7 - the shirt from its hanger and put it into a plastic shopping bag

from Sears. Bell further observed Briggs selecting or handling

other items which Battle then placed in the Sears bag. Soon

thereafter, Bell observed Battle and Briggs leave the store

without paying for the merchandise. Battle, who exited the

store first, was carrying the Sears bag containing the five

stolen pieces of clothes when he was stopped by Bell. Briggs

exited the store soon afterwards and was also detained by Bell.

The Commonwealth also introduced into evidence a video

recording from the store's closed-circuit monitoring system that

vividly reveals much of what Bell observed. That video, despite

its periodic loss of image due to tape damage, leaves no doubt

that Briggs and Battle were acting in concert. It shows them

walking together in the store, frequently stopping together to

view and discuss particular pieces of apparel, repeatedly

examining and handling the anti-theft devices on the clothes,

and then selecting, gathering, and concealing the various items

they intended to steal.

Contrary to Briggs's assertion that he did not even know

Battle, when Briggs is first seen on the videotape, he is the

one carrying the Sears bag. The video also later shows him

handing Battle a red shirt, which Battle proceeds to roll up and

put in the Sears bag, all while Briggs looks on. The tape

further shows Battle placing a sweatshirt that Briggs had just

handled into the bag while Briggs stands nearby watching. The

- 8 - two men are then seen exiting the store together, albeit Briggs

walking several conspicuous paces behind Battle.

Throughout the video, Briggs and Battle are clearly working

together. Briggs was not, as he claims, merely a passive

shopper who had nothing to do with this crime. He aided and

abetted Battle in the crime and plainly intended to steal the

clothing from Hecht's.

As for Briggs's argument that, even assuming he helped

steal the red shirt and sweatshirt, the evidence is insufficient

to prove that he stole merchandise totaling $200 or more, we

find that such a contention is without merit. Between Bell's

testimony and the videotape, there is ample evidence to support

the reasonable inference by the trial court that all of the

merchandise recovered by Bell from the Sears bag was stolen by

both Battle and Briggs. Furthermore, because he was a principal

in the second degree acting in concert with Battle, Briggs is

vicariously responsible for Battle's acts occurring during the

commission of the crime. See Fitzgerald v. Commonwealth, 227

Va. 171, 174-75, 313 S.E.2d 394, 396 (1984); Spradlin v.

Commonwealth, 195 Va. 523, 527-28, 79 S.E.2d 443, 445 (1954).

Thus, it is immaterial whether or not there is direct evidence

specifically connecting Briggs to all five of the stolen items.

He is culpable for them nonetheless.

- 9 - C. LACK OF CONSENT OR AUTHORITY

Appellant further contends that the record does not show

that Battle and Briggs lacked the store's authority and consent

to remove the clothing in question from the store's premises.

Therefore, the evidence presented by the Commonwealth is

insufficient to prove he committed larceny, Briggs argues.

Larceny is the "wrongful or fraudulent taking of personal

goods of some intrinsic value, belonging to another, without his

assent, and with the intention to deprive the owner thereof

permanently." Dunlavey v. Commonwealth, 184 Va. 521, 524, 35

S.E.2d 763, 764 (1945).

Here, the evidence established that, while in Hecht's

Department Store, Battle, aided and abetted by Briggs, took

items of clothing that were on display and for sale in the young

men's department and placed them into a plastic shopping bag

from Sears. In at least two instances, he attempted to remove

anti-theft devices from the store's merchandise. Battle then

left the store carrying the bag filled with Hecht's clothes

without paying for the merchandise. He was stopped outside the

store by Hecht's security manager who testified at trial that

Battle had "[f]ive items belonging to Hecht's Department Store"

in the Sears bag. All of the items had Hecht's price tags on

them, and none of them had been paid for by Battle or Briggs.

Briggs offered no evidence at trial to show that he and Battle

- 10 - had permission to remove the merchandise from Hecht's without

paying for it.

We find that the trial court was entitled to infer from

this evidence that Battle and Briggs removed the clothing from

the store's premises without the assent of the store.

Hence, we conclude that the evidence presented in this case

sufficiently supports appellant's grand larceny conviction and

that the conviction is not plainly wrong. Accordingly, we

affirm the conviction.

Affirmed.

- 11 -