Mark Weldon Saunders v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 1, 2002
• Docket: 1794012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

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

MARK WELDON SAUNDERS MEMORANDUM OPINION * BY v. Record No. 1794-01-2 JUDGE ROBERT J. HUMPHREYS OCTOBER 1, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge

Craig S. Cooley for appellant.

John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General; Jennifer R. Franklin, Assistant Attorney General, on brief), for appellee.

Mark Weldon Saunders appeals his conviction, after a bench

trial, for unlawfully taking property having a value of $200 or

more. Saunders contends the trial court erred in finding the

evidence sufficient to support the conviction. Saunders further

argues that the trial court erred in finding the matter to be

criminal in nature, rather than a civil issue arising in the

context of his divorce proceedings. For the reasons that follow,

we affirm the judgment of the trial court.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Further, because this opinion has no precedential value, we recite only those facts essential to our holding. On appeal, Saunders contends the trial court erred in finding

the evidence sufficient to support the conviction. Specifically,

Saunders argues the "weight of the evidence in the case at bar

failed to demonstrate grand larceny" and that the "Commonwealth's

evidence was conjectural at best." We disagree.

When a defendant challenges the sufficiency of the evidence

on appeal, we must give the judgment of the trial court sitting

without a jury the same weight as a jury verdict. Tarpley v.

Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001);

Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645

(1999); Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312,

314 (1998). Indeed, we have a duty to examine the evidence that

tends to support the conviction and to uphold the conviction

unless it is plainly wrong or without evidence to support it.

Code § 8.01-680; Tarpley, 261 Va. at 256, 542 S.E.2d at 763;

Taylor, 256 Va. at 518, 506 S.E.2d at 314; Commonwealth v.

Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998); McCain v.

Commonwealth, 261 Va. 483, 492-93, 545 S.E.2d 541, 547 (2001).

Although it is true that, "suspicion or even probability of

guilt is not sufficient," to support a conviction, "a conviction

may properly be based upon circumstantial evidence." Gordon v.

Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971). As

long as there is "an unbroken chain of circumstances proving the

guilt of the accused to the 'exclusion of any other rational

- 2 - hypothesis and to a moral certainty,'" the evidence will be

sufficient and we will uphold such a finding unless it is plainly

wrong or without evidence to support it. Id. (quoting Brown v.

Commonwealth, 211 Va. 252, 255, 176 S.E.2d 813, 815 (1970)).

"'Larceny is defined as 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.' If the goods are valued at $200 or more,

the offense is grand larceny." Walker v. Commonwealth, 25

Va. App. 50, 58, 486 S.E.2d 126, 130 (1997) (quoting Jones v.

Commonwealth, 3 Va. App. 295, 300, 349 S.E.2d 414, 417 (1986)).

Considering the evidence in the light we must, and based upon

the totality of the direct and circumstantial evidence before the

trial court, we find that it was reasonable, and not plainly

wrong, for the trial court to infer: 1) that each of the items

Judy Saunders alleged were stolen existed; 2) that the items were

the personal and separate property of Judy Saunders; 3) that

Saunders took the items with the intent to deprive his wife

permanently of their possession; and, 4) that the value of the

items taken exceeded the statutorily required amount to establish

grand larceny.

Moreover, we find Saunders' argument that the trial court

incorrectly considered this matter as criminal rather than as a

- 3 - portion of the divorce proceedings is without merit. 1 First, as

we have found above, the evidence established that the property at

issue was the personal and separate property of Judy Saunders. In

Stewart v. Commonwealth, 219 Va. 887, 252 S.E.2d 329 (1979), the

Supreme Court of Virginia found that a husband may be convicted of

stealing his wife's property. Thus, regardless of the pending

divorce proceedings and related issues of equitable distribution,

by unlawfully taking his wife's personal and separate property,

Saunders committed a criminal act. Accordingly, the judgment of

the trial court is affirmed.

Affirmed.

1 The Commonwealth contends that Saunders' argument in this regard was not properly presented to the trial court, as Saunders failed to present the court with "legal grounds to support" such an argument, nor did he argue that the issue is a policy matter. However, the purpose of Rule 5A:18 is "to give the trial court an opportunity to rule intelligently and to avoid unnecessary appeals, reversals, and mistrials." Marshall v. Goughnour, 221 Va. 265, 269, 269 S.E.2d 801, 804 (1980). Although objections must be specific and not general, in this case we find that Saunders' objection was made with sufficient certainty in his argument on his motions to strike, so that the trial judge could understand the precise question he was called upon to decide. See Darnell v. Commonwealth, 12 Va. App. 948, 953, 408 S.E.2d 540, 542-43 (1991).

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