Mario Cherome Briggs v. Commonwealth of Virginia ( 2001 )

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).
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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.
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