Nikita Terell Brown v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Senior Judge Bumgardner
Argued at Chesapeake, Virginia
NIKITA TERELL BROWN
MEMORANDUM OPINION * BY
v. Record No. 1984-09-1 JUDGE ROBERT P. FRANK
JULY 27, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Gregory K. Matthews (S. Jane Chittom, Appellate Defender; Brenda
Spry, Public Defender, on brief), for appellant.
Jennifer C. Williamson, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Nikita Terell Brown, appellant, was convicted, in a bench trial, of conspiracy to commit
larceny, in violation of Code § 18.2-23(B), and grand larceny, in violation of Code § 18.2-95. 1 On
appeal, she contends the trial erred in finding the evidence sufficient to convict. For the reasons
stated, we affirm the trial court.
BACKGROUND
Eric Johnson, a loss prevention employee at a Wal-Mart store in Portsmouth, Virginia, first
noticed appellant, along with Marcus White and Tonya Wright, in the grocery department of the
store. Johnson saw appellant and Wright each pushing a grocery cart and talking to each other as
they selected items, placing them into their respective carts. Johnson did not know if the three
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The sentencing order incorrectly states that appellant was convicted under Code
§ 18.2-22, rather than Code § 18.2-23(B), and Code § 18.2-250, rather than Code § 18.2-95. We
remand the case solely for correction of the sentencing order.
entered the store together. He also observed Marcus White, who was standing on the same aisle
approximately six to eight feet away from the two women, put canned tuna fish in his jacket pocket.
As the three suspects walked together in the grocery department, they were speaking to each
other, although Johnson could not hear the conversation. They continued through the grocery
department selecting more merchandise.
Each of the two women placed numerous items of frozen food into their own carts.
Appellant, White, and Wright then proceeded together to the health and beauty department, some
200 feet away. Each of the women put several personal items in her cart. White remained with the
women. The three then walked together to the toy department, a distance of between sixty and
seventy-five feet.
In the toy department, appellant and Wright put some of their health and beauty selections
into their purses. Appellant removed Wal-Mart bags from her purse and placed other items from
her grocery cart into a number of Wal-Mart bags. Wright also placed items from her cart into
several Wal-Mart bags. When Wright ran out of bags, Johnson saw her place the filled bags over
the rest of the merchandise in her cart.
While appellant and Wright were concealing these items, White stood at the end of the aisle,
approximately fifteen feet from appellant and six feet from Wright, looking in both directions.
White was not looking at the two women, but was observing the main aisle.
Thereafter, appellant pushed her cart towards the front of the store, while White pushed
Wright’s cart in the same direction. When they reached the front of the store, appellant went to the
register line. She paid for several items, but did not purchase the items that she had placed in the
Wal-Mart bags. White and Wright, walking side-by-side, continued past all points of sale without
stopping at a register.
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Appellant, Wright, and White were apprehended, and Officer J.P. Worley of the Portsmouth
Police Department recovered from them the concealed items that Johnson had described.
Johnson testified the aggregate value of all of the merchandise recovered from appellant,
Wright, and White was $518.05. He was unable to determine the value of the merchandise
recovered from appellant alone,2 Wright alone, or White alone. Johnson testified he watched the
three suspects for one-and-a-half hours during which time they were separated only twice.
The trial court found appellant guilty of conspiracy and grand larceny. This appeal follows.
ANALYSIS
Appellant contends her conviction of conspiracy must fail because there was no evidence
proving an agreement between her and Wright and/or White. Joint activity alone, she argues, is
insufficient to prove the requisite agreement to commit larceny.
Conspiracy is “an agreement between two or more persons by some concerted action to
commit an offense.” Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493
(1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327 (1936)). “In
order to establish the existence of a conspiracy, as opposed to mere aiding and abetting, the
Commonwealth must prove ‘the additional element of preconcert and connivance not necessarily
inherent in the mere joint activity common to aiding and abetting.’” Zuniga v. Commonwealth, 7
Va. App. 523, 527, 375 S.E.2d 381, 384 (1988) (quoting United States v. Peterson, 524 F.2d 167,
174 (4th Cir. 1975)).
As to value of the items stolen, appellant maintains without proof of a conspiracy the
aggregate value of all the concealed items cannot be attributed to her. The only testimony as to the
value of goods recovered specifically from appellant was $34.68, the value of the ovulation kit.
2
Johnson did testify the value of an ovulation kit found on appellant was $34.68.
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“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987)). When considering a challenge that the evidence presented at trial
is insufficient, “the judgment of the trial court is presumed to be correct,” Broom v. Broom, 15
Va. App. 497, 504, 425 S.E.2d 90, 94 (1992), and we will not set it aside unless it “is plainly wrong
or without evidence to support it,” Dodge v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365
(1986). We do not “substitute our judgment for that of the trier of fact.” Wactor v. Commonwealth,
38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). “This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Id.‘“Conspiracy requires . . . (1) an agreement between two or more persons, which constitutes
the act; and (2) an intent thereby to achieve a certain objective[,] either an unlawful act or a lawful
act by unlawful means.’” Hix v. Commonwealth, 270 Va. 335, 347, 619 S.E.2d 80, 87 (2005)
(quoting Wayne R. LaFave, Criminal Law § 12.2, at 621 (4th ed. 2003)). As the Virginia Supreme
Court has explained, “the crime of conspiracy is complete when the parties agree to commit an
offense. . . . No overt act in furtherance of the underlying crime is necessary.” Gray v.
Commonwealth, 260 Va. 675, 680, 537 S.E.2d 862, 865 (2000) (quoting Falden, 167 Va. at 544,
189 S.E. at 327).
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Furthermore, a conspiracy “may be proved by circumstantial evidence. Indeed, because of
the very nature of the offense, ‘it often may be established only by indirect and circumstantial
evidence.’” Id. (quoting Floyd v. Commonwealth, 219 Va. 575, 580, 249 S.E.2d 171, 174 (1978)).
Appellant contends the evidence only proves that appellant, Wright, and White simply acted
jointly in concealing the merchandise, which activity does not prove the essential element of
conspiracy, an agreement to commit the offense. Conceding the evidence indicates that Wright and
White were together involved in shoplifting, appellant asserted no evidence suggests any direct
involvement between appellant and White. Specifically, she argues no evidence proved appellant
assisted either White or Wright in their shoplifting activities. The only conclusion the evidence
reveals, appellant continues, is that appellant engaged in the same crime and in the same store as
White and Wright. There was no evidence of an agreement. We disagree.
Because most conspiracies are “clandestine in nature,” 2 Wayne R. LaFave, Substantive
Criminal Law § 12.2(a), at 266 (2d ed. 2003), and because of the nature of the offense, a
conspiratorial agreement often may only be established by circumstantial and indirect evidence
including the overt actions of the parties. See Floyd, 219 Va. at 580-81, 249 S.E.2d at 174. Thus,
we must examine the overt conduct of appellant, Wright, and White. Appellant and Wright were
talking to each other while putting goods in their shopping carts. White was concealing
merchandise at that point. Together the three walked to the frozen food section, talking with each
other. From there, the three walked together to the health and beauty department, where appellant
and Wright placed additional items in their carts. They then went together to the toy department
where appellant and Wright concealed the items they retrieved from other departments in Wal-Mart.
Based on Johnson’s testimony that White was looking in both directions, but not at his
companions, the trial court could properly conclude White served as a lookout while appellant and
Wright were concealing the merchandise. “[A] common purpose and plan may be inferred from a
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development and collocation of circumstances.” United States v. Godel, 361 F.2d 21, 23 (4th Cir.)
(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)), cert. denied, 385 U.S. 838 (1966). Both
women utilized Wal-Mart bags to conceal the merchandise. Whether Wright obtained the
Wal-Mart bags from appellant or had brought the bags into the store herself, the trial court could
properly infer the two women, prior to entering the store, agreed upon a course of action that would
provide the means to conceal the merchandise to be stolen from Wal-Mart.
Upon completing the concealment of the merchandise, all three proceeded to the front of the
store. Appellant entered the cashier’s line to pay for several items. White pushed Wright’s cart past
the check-out and proceeded to exit the store. The trial court was entitled to infer that appellant paid
for some items in order to divert attention from her companions. The trial court could again
properly conclude an agreement to shoplift, rejecting appellant’s contention that each independently
concealed merchandise.
Tellingly, testimony revealed appellant, White, and Wright were in the store, together, for
one-and-a-half hours, going from aisle to aisle, department to department, taking merchandise and
thereafter concealing the merchandise.
Clearly, there was an agreed division of labor to effect the larceny in this case. As Amato v.
Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987), instructs us,
[w]here it is shown that the defendants by their acts pursued the
same object, one performing one part and the other performing
another part so as to complete it or with a view to its attainment,
the jury will be justified in concluding that they were engaged in a
conspiracy to effect that object.
White was with appellant and Wright for a significant amount of time. While the women
were placing merchandise in their carts, White was present. Once the women began to conceal the
merchandise, White then assumed his role as a lookout, standing at the end of the aisle where the
women were located, looking at the main aisle, and not at his companions. The evidence is
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sufficient to show an agreement between appellant, Wright, and White, and to show that the three of
them aided and assisted each other to accomplish their common goal.
We conclude the evidence supports a finding that appellant, Wright, and White had agreed
to commit larceny at Wal-Mart, thus supporting a conspiracy conviction under Code § 18.2-23(B).
Appellant’s argument that the evidence failed to prove appellant concealed at least $200
worth of merchandise is without merit. This argument presupposes the aggregate value of the
merchandise concealed by all three perpetrators cannot be considered.
To convict appellant of grand larceny, the Commonwealth was required to prove the
property she unlawfully took was valued at $200 or more. Code § 18.2-95(ii). The relevant value is
the “current value” of the stolen items, Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792,
792 (1981) (per curiam), “measured as of the time of the theft,” Parker v. Commonwealth, 254 Va.
118, 121, 489 S.E.2d 482, 483 (1997).
Code § 18.2-23(B) provides:
If any person shall conspire, confederate or combine with another
or others in the Commonwealth to commit larceny or counsel,
assist, aid or abet another in the performance of a larceny, where
the aggregate value of the goods or merchandise involved is more
than $200, he is guilty of a felony punishable by confinement in a
state correctional facility for not less than one year nor more than
20 years. The willful concealment of goods or merchandise of any
store or other mercantile establishment, while still on the premises
thereof, shall be prima facie evidence of an intent to convert and
defraud the owner thereof out of the value of the goods or
merchandise. A violation of this subsection constitutes a separate
and distinct felony.
(Emphasis added).
Thus, appellant’s argument as to value is necessarily related to her argument regarding
the conspiracy. Under Code § 18.2-23(B), a resolution of the conspiracy argument resolves the
value argument.
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Because we have found the evidence proves conspiracy, and the aggregate value of the
merchandise concealed by appellant, White, and Wright is $518.05, the trial court did not err in
convicting appellant of grand larceny. 3
CONCLUSION
The trial court properly found sufficient evidence to prove an agreement between
appellant, White, and Wright. The value of the merchandise concealed by appellant and her
cohorts exceeded $200. Therefore, we affirm appellant’s convictions for grand larceny and
conspiracy to commit larceny. We remand the case to the circuit court solely to correct the
sentencing order to reflect appellant’s convictions under Code §§ 18.2-23(B) and 18.2-95.
Affirmed and remanded.
3
Appellant does not contest the aggregate value of the merchandise was at least $200.
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