Michael Taylor, s/k/a Michael W. Taylor v. CW ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia
MICHAEL TAYLOR, S/K/A
MICHAEL W. TAYLOR
MEMORANDUM OPINION * BY
v. Record No. 2474-96-2 JUDGE JAMES W. BENTON, JR.
DECEMBER 16, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
Oliver A. Pollard, Jr., Judge
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on brief), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Michael W. Taylor was convicted of grand larceny in
violation of Code § 18.2-95. On appeal, he contends that the
evidence was insufficient to prove beyond a reasonable doubt that
he intended to take the property of another. We agree and
reverse his conviction.
Facts
On March 11, 1995, Long Manufacturing Company held an
absolute auction of its property because Long had ceased doing
business. Deborah Loftis, the president of Long, testified that
prior to the auction, Long sold to Sudhaus of America eleven dies
that were used to make trunk locks. Sudhaus purchased the dies
for $9,000 and their patents for $29,000. During the auction,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Sudhaus dies were on wooden pallets on the floor of the
shipping and receiving building about fifteen to twenty feet from
the shipping door. Half the Sudhaus dies had yellow tags
attached to them.
The auction company assigned a number to every piece of
equipment and to every lot of items to be auctioned. This number
was marked with a chalk pencil on each piece of equipment. Among
the items sold at the auction were large numbers of various
presses and dies. Because the dies were on metal racks that had
three or four shelves, with 50 to 60 dies on a rack, each rack of
dies was assigned a lot number. The rack was marked in chalk
with this number and the dies on that rack were sold as a lot.
The individual dies were not marked. The majority of the lots of
dies being auctioned were located in the main building. However,
some dies were located in the shipping and receiving building,
the same building where the Sudhaus dies were located.
During the auction, the auctioneer proceeded through each of
three connected buildings selling equipment individually or by
lot according to the assigned number. Because the electricity
was off in all of the buildings, the auctioneer would shine a
flashlight on the equipment that was being sold.
Taylor, a self-employed scrap hauler, routinely went to
auctions to purchase scrap metal and machines to sell to Peck's
Recycling in Richmond. At the auction, Taylor purchased for $900
four lots of dies and various presses weighing approximately nine
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tons. The dies Taylor purchased were located on racks of shelves
in the tool shop building and the main building.
After the auction, the buyers had thirty days from the date
of the auction to obtain their purchases. Usually, Loftis would
unlock the doors to the buildings and allow the buyers to
retrieve the items they purchased. Loftis testified that
occasionally the buyers had to move equipment out of the way to
get to their purchased items. Because the buildings at the plant
were connected, and the only loading area was in the shipping and
receiving building, the majority of the buyers loaded their
purchases through the doorway of that building. Taylor loaded
his items through that doorway using a forklift.
On April 11, Taylor and another scrap hauler, who had also
purchased items at the auction, arrived at Long's premises to
retrieve their property. Taylor had retrieved many of his
purchases on other occasions. Loftis testified that very little
property remained on the premises at that time and that she left
the premises at 11:00 a.m. while the men were retrieving their
property. When Loftis returned at 3:00 p.m., Taylor and the
other man were gone. Loftis noticed that the Sudhaus dies were
missing.
Loftis went to Peck's Recycling to look for the Sudhaus dies
and saw several dies within mounds of other scrap metal. On her
first trip, she retrieved five or six dies from Peck's Recycling
and took them back to the plant. However, after she pulled the
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dies apart and looked at them, she determined that not all of
them were Sudhaus dies. Therefore, she returned three dies to
Peck's. Loftis testified that the dies were not marked with the
manufacturer's name. Thus, she had to open the dies before she
was able to identify the Sudhaus dies. When she opened the dies,
she was able to identify the Sudhaus dies because she had
previously worked with those dies. In total, she recovered about
half the Sudhaus dies. None of the dies she recovered from
Peck's had yellow tags on them.
Taylor testified that he retrieved the majority of his
property on the first or second day after the auction. He went
to Long's several times and loaded his purchases onto a
twenty-six foot truck. Taylor testified that when he returned on
April 11, the thirtieth day, to get the balance of his property,
many of the dies were moved, whole shelves were missing, and the
dies had been pushed off the shelves and shoved onto the floor.
He testified that he had to look around for his items, walking
from one building to another to find them. Taylor also testified
that most of the dies he purchased had to be transferred to
wooden pallets for loading onto his truck because the racks could
not be picked up with a forklift.
Taylor testified that he assumed the remaining dies were his
because Loftis had said that all the other buyers had gotten
their property. He loaded the dies that he thought were his and
took them to Peck's Recycling. Taylor testified that no tags
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were on any of the dies that he retrieved and that, if tags had
been on the dies, they would have been noticeable. He loaded his
dies onto his truck from the shipping and receiving building.
Taylor testified that when he learned at Peck's Recycling
that someone wanted to speak with him about the dies, he called
Loftis and left a message. According to Loftis, when she talked
to Taylor, she told him that those dies did not belong to him and
asked if he took them. Taylor told her that he took the dies to
Peck's Recycling. When Loftis told Taylor that the police wanted
to talk to him, Taylor asked for the name and phone number of the
investigating officer. Taylor called the officer. When the
officer said that Taylor had taken the dies, Taylor responded,
"Well, I'm sorry. I thought they were mine. I'll do what I can
to get them back." Taylor then went to Peck's Recycling, offered
a reward if Peck's could find the dies, and told them he would
repurchase the dies.
Taylor was arrested on April 14. After his arrest, Taylor
told the investigating detective that he took the dies that were
found at Peck's Recycling. Taylor said that he had purchased
dies and thought the dies he took were his. He also stated that
he had purchased a number of dies and that he was not sure if the
dies he took from Long's premises were his or not. Taylor said
that the dies he took were in the same area where his dies were
stored. When the detective explained that the dies Taylor took
were stored in a different area, Taylor stated that he took the
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dies from "out front where the loading dock was."
The trial judge found that the Sudhaus dies were marked for
delivery and Taylor knew they were not his dies. Based on those
findings, the judge convicted Taylor.
Sufficiency of the Evidence
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." Skeeter v. Commonwealth, 217 Va. 722, 725, 232
S.E.2d 756, 758 (1977). "In determining intent, 'the fact finder
may consider the conduct of the person involved and all the
circumstances revealed by the evidence.'" Welch v. Commonwealth,
15 Va. App. 518, 524, 425 S.E.2d 101, 105-06 (1992) (citation
omitted). As in all criminal cases, the Commonwealth must prove
beyond a reasonable doubt each element of the offense. Jones v.
Commonwealth, 3 Va. App. 295, 299, 349 S.E.2d 414, 417 (1986).
Equally well established is the principle that "[e]vidence
is not sufficient to support a conviction if it engenders only a
suspicion or even a probability of guilt. Conviction cannot rest
upon conjecture. The evidence must be such that it excludes
every reasonable hypothesis of innocence." Hyde v. Commonwealth,
217 Va. 950, 955, 234 S.E.2d 74, 78 (1977). "When, from the
circumstantial evidence, 'it is just as likely, if not more
likely,' that a 'reasonable hypothesis of innocence' explains the
accused's conduct, the evidence cannot be said to rise to the
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level of proof beyond a reasonable doubt." Littlejohn v.
Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)
(citation omitted).
The evidence, viewed in the light most favorable to the
Commonwealth, Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975), failed to prove beyond a reasonable doubt
that Taylor had the requisite criminal intent to take the
property of another. It does not exclude the reasonable
hypothesis that Taylor took the dies because he believed that he
had purchased them at the auction and that the dies belonged to
him.
The evidence proved that over a period of thirty days after
the auction, buyers had been going to the plant to retrieve their
purchases, moving equipment and property aside, and loading their
items at the shipping and receiving building. Not all items were
in the same places in which they were located during the auction.
Loftis testified that on April 11, there were very few items left
in the buildings. When Taylor returned on April 11 to retrieve
the balance of his property, the dies he had purchased were no
longer neatly stacked on metal racks marked by lot numbers. They
were shoved on the floor and racks were missing.
The evidence proved that the Sudhaus dies were not all
individually tagged. Loftis admitted that about half of the
eleven Sudhaus dies were not tagged, and she testified that both
the tagged and untagged Sudhaus dies were sitting on a pallet in
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the shipping and receiving department. 1 However, during the
auction, other dies had been sold in lots from racks located in
that building. No evidence tended to prove that Taylor would
have known that the untagged dies were not his when he walked
through each of the buildings to find his property.
The Sudhaus dies also could not be easily identified on
sight. Loftis, who had worked with the Sudhaus dies for several
years, could not distinguish the Sudhaus dies from other dies
until she pulled the dies apart. Indeed, when Loftis retrieved
dies from Peck's Recycling where Taylor sold his dies, none of
the dies Loftis recovered had tags on them. She could not
determine whether they were the Sudhaus dies until she opened
them at Long's.
Taylor told the police that he had purchased several lots of
dies, and, while he thought the remaining dies were his, he
wasn't certain. Indeed, Taylor had been told that all the other
buyers had retrieved their property. Because his dies were not
where he had left them, much of the auctioned property had been
moved, and at least half of the Sudhaus dies were not tagged,
Taylor could have reasonably assumed that the remaining dies
located near the loading area, including the untagged Sudhaus
dies, were his.
1
Although Loftis first testified that she personally
attached yellow tags to each of the Sudhaus dies, she later
testified that she had only put tags on about half of the dies.
She stated that she had attached the tags at the end of February
and had checked the tags the morning of April 11.
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If property is taken "under a bona fide claim of right, as
under a claim of ownership," criminal intent is lacking and there
can be no larceny. Pierce v. Commonwealth, 205 Va. 528, 533, 138
S.E.2d 28, 32 (1964); See Butts v. Commonwealth, 145 Va. 800,
813, 133 S.E. 764, 768 (1926). "'[W]here there is some evidence
that the taking was under claim of right on the part of the
accused, evidence that the property was taken openly, without any
concealment or subsequent effort to conceal the taking, is
evidence of good faith in the claim of right.'" Whitlow v.
Commonwealth, 184 Va. 910, 917, 37 S.E.2d 18, 21 (1946) (citation
omitted).
Based on this evidence, we cannot say that the Commonwealth
excluded the reasonable hypothesis that Taylor took the unmarked
Sudhaus dies because he believed they were his. From the
evidence in this record, the trier of fact would have to
speculate that Taylor took the Sudhaus dies that were marked. No
evidence proved that Taylor did. They were not located at Peck's
Recycling. Furthermore, the Commonwealth did not prove beyond a
reasonable doubt that Taylor had the requisite criminal intent to
take the property of another. Rather, the evidence tends to
prove that Taylor had a good faith, although mistaken, claim of
right to the property. Therefore, we reverse his conviction and
dismiss the indictment.
Reversed and dismissed.
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