Bruce Gregory Reed v. Commonwealth of Virginia ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges McCullough and Chafin
UNPUBLISHED
Argued by teleconference
BRUCE GREGORY REED
MEMORANDUM OPINION* BY
v. Record No. 2147-13-3 JUDGE STEPHEN R. McCULLOUGH
APRIL 7, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
James W. Updike, Jr., Judge Designate
Joseph A. Sanzone (Sanzone & Baker, L.L.P., on brief), for
appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Bruce Gregory Reed was convicted of grand larceny. He assigns the following error:
The Trial Court erred by allowing Ms. Jones [the owner of the
property] to testify for a second time and impeach herself by
contradiction by using an opinion that was without a proper
foundation, and was an impermissible estimate, and without which
no value exceeding two hundred dollars could be established.
The standard of review compels us to affirm.
BACKGROUND
Joan Jones owns a house in the City of Lynchburg. She has lived there since 1958.
Numerous trees had been knocked down after a “derecho” storm struck the City of Lynchburg.
Reed, who owns Reed’s Tree Service, approached Jones and asked if she had any trees she
wanted cut down. She responded that she was thinking about it for the fall. She identified two
poplar trees between her house and a detached garage. Jones told Reed that, because the trees
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
were so close together, she was considering taking one down to make the other one “fuller.”
Both trees were about seventy feet tall and were in excellent condition. They were on the
property when she moved into the house. When Reed offered to remove the trees without
charging her, she responded that she was waiting until fall to decide if she wanted them removed.
They did not reach an agreement, but Jones told Reed to call her before returning. Reed never
called her back.
After an overnight stay, Jones returned home to find that the two poplar trees had been
removed. Only the stumps remained. Although there was some wood debris behind the house,
the timber had been hauled away. Later, she saw Reed working in a yard nearby. When she
confronted him saying, “[Y]ou cut down my trees,” he responded that he had cut down a dead
tree, a hemlock, and had to cut down the two poplar trees to remove his equipment. Reed and
Jones had not discussed the removal of the hemlock tree. Jones was not concerned about the
hemlock, because it was “in the woods down below the property.”
Reed was charged with grand larceny of the trees. At his bench trial, Jones recounted the
events and, when asked on direct examination if she had an opinion on the value of the trees, she
responded that she did not. The Commonwealth then called an arborist to testify. After the court
excluded the arborist’s testimony concerning the value of the poplar trees, the Commonwealth
recalled Jones. She testified that she would not have accepted $200 for the two trees. She also
stated that the trees, together, were worth about $10,000. This was “just [her] estimate,” she
said, based on her understanding “that it’s a virgin forest,” that “[t]hese were original trees” that
had “probably been there two hundred years.” She also stated that “poplar is very valuable
wood.” When asked if she based her estimate on fair market value, she responded, “I’m not
qualified. That’s why I hired the arborist.”
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At the close of the Commonwealth’s evidence, the defense moved to strike, arguing,
among other things, that the evidence did not establish a fair market value for the trees. The
court denied the motion.
Reed took the stand in his defense. Reed explained that, following the storm in the area,
he received calls for a number of tree removal jobs. According to Reed, when he approached
Jones to inquire about her property line, she showed him her plat and asked him to take down the
two poplar trees in question. Reed said that Jones expressed a concern that the trees, which
leaned toward the house, might fall. He testified that Jones previously had work done on these
two poplars and that the trees had suffered wind damage from the derecho. According to Reed,
the removal job was worth $2000. Instead of being paid the $2000, however, he agreed to
remove two other, healthy poplars nearby because that would “offset it.” As it turned out,
however, these other “offset” trees were on a neighbor’s property, and Reed never cut them
down. Reed never tried to collect any money. He stated, “After she was upset about it I let it
go.”
Reed, who was previously convicted of a felony, said he buys and sells wood “all the
time.” In his view, poplar trees provide “pallet grade lumber.” Good quality pallet grade
lumber, he explained, is worth $235 for a thousand feet. Reed opined that the poplar trees he cut
down were not of good quality and were only suited for firewood. He stated that the trees had
been topped. He explained that a weak economy resulted in a similarly weak lumber market,
which had not been “really good” for five years. He also testified that the two poplars would
have yielded about one sixth of a load and that a sawmill generally will not purchase wood in
amount less than one load. Moreover, Reed said that he would have incurred additional gas and
driver’s expenses to transport the wood to a sawmill, amounting to “about, three, three-fifty a
load.”
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Reed renewed his motion again, moved to strike the evidence, arguing, among other
things, that the Commonwealth failed to establish the value of the trees. The trial court denied
the motion. The Commonwealth recalled Jones in rebuttal. Contradicting Reed’s testimony, she
denied having had any past work done on the trees and specifically denied having them pruned
or topped.
Appellant presented closing argument but did not renew his motion to strike at the close
of all the evidence. He argued that Jones’s estimate of the trees’ value was without foundation.
The trial court found that, although the Commonwealth had not established specific value for the
trees, the evidence proved beyond a reasonable doubt that it exceeded $200. The court made
clear that it based this conclusion on “the evidence in its entirety.”
ANALYSIS
We review the evidence in the light most favorable to the Commonwealth, as the
prevailing party below, and determine whether “‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Commonwealth v. McNeal, 282
Va. 16, 20, 710 S.E.2d 733, 735 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In a bench trial, “[t]he credibility of the witnesses and the weight accorded the evidence are
matters solely for the [trial judge] who has the opportunity to see and hear that evidence as it is
presented.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
“Furthermore, we ‘accord the Commonwealth the benefit of all inferences fairly deducible from
the evidence.’” Brooks v. Commonwealth, 282 Va. 90, 95, 712 S.E.2d 464, 466 (2011) (quoting
Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008)).
In a prosecution for grand larceny, the Commonwealth must prove beyond a reasonable
doubt that the value of the stolen goods had a value of $200 or more. Code § 18.2-95.
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Appellant first argues that the Commonwealth should not have been permitted to recall
Jones to contradict her prior testimony. “The rule is well established in Virginia that ‘great
latitude [will be given] to the discretion of the trial [judge] as to the order in which witnesses
may be called and the manner of their examination.’” Whitehead v. Commonwealth, 31
Va. App. 311, 318, 522 S.E.2d 904, 907 (2000) (alterations in original) (quoting Butler v.
Parrocha, 186 Va. 426, 433, 43 S.E.2d 1, 5 (1947)). Trial courts have the discretion “to permit
the recall of witnesses for further examination.” See, e.g., Avocet Dev. Corp. v. McLean Bank,
234 Va. 658, 669, 364 S.E.2d 757, 764 (1988). Here, we perceive no abuse of discretion in
permitting the Commonwealth to recall Jones to afford her the opportunity to correct, explain, or
supplement her prior testimony. Moreover, Jones’s testimony was plainly offered as substantive
evidence to establish the value of the stolen trees and not to impeach prior testimony.
The heart of Reed’s argument is that Jones had no basis for her opinion that the trees
were, together, worth approximately $10,000. Initially, Jones stated, without elaboration, that
she did not have an opinion on the value of the two poplar trees that were cut. On recall, she
testified to the trees’ “approximate” value, whether the trees were worth more or less than $200.
Jones answered that the two trees were “probably” worth $10,000 and candidly acknowledged
that she was providing only an estimate. She explained that she based this estimate on age of the
trees, which were probably two hundred years old, and because poplar is “very valuable wood.”
When asked if she based her testimony on fair market value, she stated that she was “not
qualified” to make such a determination. She elaborated, “That’s why I hired the arborist.”
Appellant asked no further questions to explore or challenge the basis of her estimate.
Under settled Virginia law,
[i]t is generally recognized that the opinion testimony of the owner
of property, because of his relationship as owner, is competent and
admissible on the question of the value of such property, regardless
of his knowledge of property values. It is not necessary to show
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that he was acquainted with the market value of such property or
that he is an expert on values. He is deemed qualified by reason of
his relationship as owner to give estimates of the value of what he
owns. The weight of such testimony is, of course, affected by his
knowledge of the value.
Haynes v. Glenn, 197 Va. 746, 750, 91 S.E.2d 433, 436 (1956) (citation omitted).1 Jones’s
testimony was admissible, and any weaknesses in that testimony would go to its weight.
By itself, and on its own terms, Jones’s estimate, although admissible, was
“approximate.” Jones’s testimony, however, was not the only evidence before the trial court on
the question of value. The court specifically stated that, on the question of value, it was basing
its conclusion on the entirety of the evidence. The evidence before the court was not limited to
Jones’s testimony, it also included the evidence supplied through Reed’s account.
Jones testified she never contracted with appellant to cut down the trees, that appellant
did so at his own initiative. Appellant was knowledgeable about the value of wood. He owns a
tree service, and he buys and sells wood “all the time.” If Reed performed the work without
contracting with Jones and without compensation, then it stands to reason that appellant cut
down the trees because he knew that they were valuable. He would not have gone to the trouble
of cutting down two large, healthy trees – each seventy feet tall – unless it would be worth his
while. Reed, himself, noted that the cost of transporting a load of trees to the sawmill, including
gas and a driver, would be about $300 to $350. While Reed stated that the poplars he cut down
were of poor quality, Jones refuted his testimony, repeatedly stating that they were healthy trees.
1
Reed argues that, “[w]hile a lay witness can clearly testify as to the value of property
which they own, such normal testimony involves items which an owner may commonly buy or
sell.” He offers no authority for this proposition. Therefore, while there may be an outer limit
for a property owner’s valuation testimony, this is not the case for us to resolve the issue. See
Montgomery v. Commonwealth, 56 Va. App. 695, 705, 696 S.E.2d 261, 266 (2010)
(“‘[S]tatements unsupported by argument, authority, or citations to the record do not merit
appellate consideration.’” (quoting Epps v. Commonwealth, 47 Va. App. 687, 718, 626 S.E.2d
912, 926-27 (2006) (en banc))).
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Reed testified that he was willing to cut down and haul away the two purportedly
unhealthy poplars, a job worth $2000, if he could also cut down two other poplars located
nearby. Although the record does not reveal the size of the two healthier trees, this evidence
supports the trial court’s conclusion that the two poplars on Jones’s property were worth more
than $200 and it refutes Reed’s testimony that wood from healthy poplar trees is of negligible
value.
A trial court can “accept the parts of a witness’ testimony it finds believable and reject
other parts as implausible.” Moyer v. Commonwealth, 33 Va. App. 8, 28, 531 S.E.2d 580, 590
(2000) (en banc). The trial court could consider portions of Reed’s testimony as plausible and
reject other aspects of his testimony. Similarly, the trial court could accept those parts of Jones’s
testimony that it deemed credible. From the totality of the evidence, as well as inferences from
that testimony, the trial court could reasonably reach the conclusion that, whatever precise value
the trees may have had, their worth was $200 or more.
Citing Snyder Plaza Properties, Inc. v. Adams Outdoor Advertising, Inc., 259 Va. 635,
528 S.E.2d 452 (2000), Reed argues that expert testimony was necessary to value the trees. In
that condemnation case, the Supreme Court considered whether the commissioner in chancery
should have admitted a witness’ testimony on the value of a leasehold interest in a portion of a
parcel of condemned property. See id. at 643-44, 528 S.E.2d at 457-58. The Court had excluded
the expert testimony because the parcel’s owner had not identified him as an expert in responses
to interrogatories. Id. at 643, 528 S.E.2d at 457. The parcel’s owner argued that the witness, “as
an ‘owner,’” should have been permitted to give lay opinion testimony on the leasehold interest’s
value. Id. at 643, 528 S.E.2d at 458. The Court, specifically citing Haynes v. Glenn,
acknowledged the longstanding principle that “an owner of property is competent and qualified
to render a lay opinion regarding the value of that property.” Id. at 644, 528 S.E.2d at 458. The
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Court found that principle inapplicable because the witness did not own the leasehold interest.
Id. The Court further acknowledged that, while a lay witness can offer an opinion on the value
of property, this specific witness had no knowledge of the particular leasehold interest at issue or
any of similar general character and location. Id. Snyder Plaza does not support the proposition
that expert testimony is required to value leasehold interest in a condemnation case, much less to
establish the value of a tree in a larceny case.
CONCLUSION
We affirm the judgment of the trial court.
Affirmed.
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