Maureen Pilar Falo v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Senior Judge Willis
Argued at Alexandria, Virginia
MAUREEN PILAR FALO
MEMORANDUM OPINION * BY
v. Record No. 2730-01-4 JUDGE ROBERT J. HUMPHREYS
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge
Frank Salvato for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General, on brief), for appellee.
Maureen Falo appeals her conviction, after a jury trial,
for grand larceny, in violation of Code § 18.2-95. Falo
contends the trial court erred in finding the evidence
sufficient to establish she committed the offense, as a
principal in the second degree. We disagree and affirm the
conviction.
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
* 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.
inferences fairly deducible therefrom." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So
viewed, the evidence established that on December 22, 2000, Falo
and her sister, Cristina, were shopping in a Neiman Marcus store
in McLean, Virginia. When the women arrived at the store, Falo
was carrying a purse and a garment bag, which contained a coat
she had purchased from another store earlier that day. Cristina
was carrying a purse and a blue shopping bag.
While the women were in the store, Kevin Solan, a security
officer for Neiman Marcus, observed the women, via video
monitors, engage in what he considered to be suspicious
behavior. 1 Solan first observed Falo select a red tank top from
the end of a rack of coats, and take it from the rack to look at
it. 2 Falo then placed the tank top back on the rack, but put it
between two of the coats. Falo then walked away from the rack,
but returned a few moments later with Cristina. At that time,
Solan saw Falo take a brown coat from the rack, remove it from
its hanger, and give it to Cristina. The women then continued
to browse.
1
During trial, the jury viewed portions of four videotapes
reflecting most of the events to which Solan testified.
2
Solan testified that the tank top had been misplaced on
the rack of coats and would not normally have been hanging on
that particular rack.
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A short time later, Solan observed Falo select a black
coat, from a different area of the store, and carry it, on its
hanger, to a "hard aisle" of the store where she met up with
Cristina. At that point, Solan observed Falo take the garment
bag she was carrying and place it "over the top" of the brown
coat Cristina was holding. Falo then went to a store register
and placed the black coat she had selected on hold.
While Falo was placing the black coat on hold, Solan
watched Cristina go to another area of the store, walk behind an
unmanned register, and take an empty, red Neiman Marcus shopping
bag from behind the register. Cristina carried the open
shopping bag with her as she continued to browse the store
aisles.
Solan next observed, that after placing the black coat on
hold, Falo returned to the rack of coats, where she had hung the
red tank top. Falo took the red tank top from its hanger and
"folded it up in her arms." She then walked over to Cristina
and gave her the shirt. At that time, Cristina took all of the
items she was carrying to a fitting room, in another area of the
store.
While Cristina was in the fitting room, Falo continued to
shop. Solan saw Falo select another black coat, as well as
three other tank tops, and take them to Cristina's fitting room.
The new tank tops were "sky blue," "pink," and "red." Falo did
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not remove any of these items from their hangers before handing
them to Cristina.
Shortly thereafter, another security officer, Dee Dee
Laucevicius, who had gone to the floor to observe the women more
closely, saw Cristina, through the slats in the dressing room
door, place the brown jacket and red tank top in the Neiman
Marcus shopping bag. A few moments later, Cristina emerged, met
up with Falo, and returned the black coat, and the three tank
tops on hangers, to a sales associate. Both Falo and Cristina
then proceeded to leave the store.
As the women left the store, Solan and Laucevicius observed
that Cristina was still carrying her purse, her blue shopping
bag, and Falo's garment bag. However, she was also carrying the
red Neiman Marcus bag, which now visibly contained items. Solan
and Laucevicius stopped the women just outside of the store
doors. They retrieved the Neiman Marcus shopping bag and found
the brown coat and red tank top inside.
While questioning the women in a back room of the store,
Solan asked "Is there anything else I should know about the
merchandise . . . that I should know about that I haven't
recovered?" In response, Falo replied, "Cristina, tell him."
At trial, the evidence established that the price for the red
tank top was $150 and that the price for the brown coat was
$780. On this evidence, the trial court found Falo guilty of
grand larceny, as a principal in the second degree.
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On appeal, Falo contends the trial court erred in finding
the evidence sufficient to establish that she committed the
offense as a principal in the second degree. Specifically, Falo
argues the evidence did not exclude the reasonable possibility
that Cristina acted alone. We disagree.
"A principal in the second degree is one who is not only
present at a crime's commission, but one who also commits some
overt act, such as inciting, encouraging, advising, or assisting
in the commission of the crime or shares the perpetrator's
criminal intent." Moehring v. Commonwealth, 223 Va. 564, 567,
290 S.E.2d 891, 892 (1982) (citations omitted). "In order for a
person to be a principal in the second degree to a felony, the
individual must 'know or have reason to know of the principal's
criminal intention and must intend to encourage, incite, or aid
the principal's commission of the crime.'" Jones v.
Commonwealth, 15 Va. App. 384, 387, 424 S.E.2d 563, 565 (1992)
(quoting McGhee v. Commonwealth, 221 Va. 422, 427, 270 S.E.2d
729, 732 (1980)). Furthermore,
[w]hether an accused knew or had reason to
know of the principal's criminal intention,
whether an accused encouraged the
principal's commission of the crime, and
whether the encouragement induced the
principal's commission of the crime are
questions of fact to be resolved by the fact
finder unless reasonable persons could not
disagree as to the resolution of these
issues.
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McGhee, 221 Va. at 427, 270 S.E.2d at 733. "Every person who is
present lending countenance, aiding or abetting another in the
commission of an offense is liable to the same punishment as if
he had actually committed the offense." Spradlin v.
Commonwealth, 195 Va. 523, 527, 79 S.E.2d 443, 445 (1954)
(citations omitted).
In Brown v. Commonwealth, 130 Va. 733 at
736, 107 S.E. 809 at 810, 16 A.L.R. 1039,
the court said: "Mere presence when a crime
is committed is, of course, not sufficient
to render one guilty as aider or abettor.
There must be something to show that the
person present and so charged, in some way
procured, or incited, or encouraged, the act
done by the actual perpetrator." Kemp's
Case, 80 Va. 443, 450. But whether a person
does in fact aid or abet another in the
commission of a crime is a question which
may be determined by circumstances as well
as by direct evidence.
Shiflett v. Commonwealth, 151 Va. 556, 561, 145 S.E. 336, 338
(1928). Nevertheless,
"[w]hen the evidence is wholly
circumstantial . . . all necessary
circumstances proved must be consistent with
guilt and inconsistent with innocence and
exclude every reasonable hypothesis of
innocence. The chain of necessary
circumstances must be unbroken.
Nevertheless, it is within the province of
the jury to determine what inferences are to
be drawn from proved facts, provided the
inferences are reasonably related to those
facts."
Dowden v. Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441
(2000) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228
S.E.2d 563, 567-68 (1976)).
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Here, the evidence established not only that Falo was
present, but that she personally identified the two items
eventually stolen by Cristina, and gave them to Cristina. Falo
also placed her own garment bag over the top of the brown coat
after she gave it to Cristina, effectively concealing it from
view. Moreover, Falo removed only the stolen items - the red
tank top and the brown coat - from their hangers, despite the
fact that she handled many items in the store and provided
Cristina with several other items to try on in the fitting room.
Perhaps more importantly, after Cristina left the fitting
room, Falo was with her when she returned several items to the
sales associate, but did not return the brown coat and the red
tank top. Falo was also with Cristina as Cristina left the
store carrying the red Neiman Marcus shopping bag. The bag was
visibly filled with items, although Cristina had made no
purchases in the store. Finally, when Solan questioned the
girls about the incident and asked whether there was anything
more he should know, Falo responded as if she had knowledge of
the theft, stating, "Cristina, tell him."
Under familiar principles, "it is our duty to look to that
evidence which tends to support the verdict and to permit the
verdict to stand unless plainly wrong. If there is evidence to
sustain the verdict, this court should not overrule it and
substitute its own judgment, even if its opinion might differ
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from that of the jury." Tasker v. Commonwealth, 202 Va. 1019,
1026, 121 S.E.2d 459, 464 (1961) (citations omitted). Further,
[t]he inferences to be drawn from proven
facts, so long as they are reasonable, are
within the province of the trier of fact.
The mere possibility that the accused might
have had another purpose than that found by
the fact finder is insufficient to reverse a
conviction on appeal. It is permissible for
the fact finder to have concluded that a
person intended the immediate, direct, and
necessary consequences of his voluntary
acts.
Hancock v. Commonwealth, 12 Va. App. 774, 782-83, 407 S.E.2d
301, 306 (1991) (citations omitted).
Although any single circumstance here may not have been
sufficient to establish Falo's culpability, we hold that based
upon the totality of the circumstances, a jury could have
reasonably concluded that Falo knew about the offense, lent her
"countenance" to the theft, and in fact "aided and abetted"
Cristina by providing her with the merchandise and helping her
to conceal her conduct. See Foster v. Commonwealth, 179 Va. 96,
100, 18 S.E.2d 314, 316 (1942) ("[P]roof 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 jury to infer that he
assented thereto, lent to it his countenance and approval, and
was thereby aiding and abetting the same."). Moreover, contrary
to Falo's argument, the evidence as a whole clearly excluded any
reasonable hypothesis that Falo had no knowledge of Cristina's
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conduct and that Cristina acted solely on her own. See Spencer
v. Commonwealth, 238 Va. 275, 283-84, 384 S.E.2d 775, 779 (1989)
(noting the hypotheses of innocence "which must be . . .
excluded are those which flow from the evidence itself, and not
from the imaginations of defense counsel").
For these reasons, we hold the evidence was sufficient to
sustain the jury's verdict of guilt beyond a reasonable doubt,
and we affirm the trial court's entry of final judgment.
Affirmed.
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