Ronald Irving Mitchell v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued by teleconference
RONALD IRVING MITCHELL
MEMORANDUM OPINION * BY
v. Record No. 1549-01-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 21, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge
Randy B. Rowlett (Gordon, Dodson & Gordon, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Ronald Irving Mitchell was convicted at a bench trial of
grand larceny, in violation of Code § 18.2-95. He was sentenced
to five years in prison, with three years and ten months
suspended. He appeals on the ground that the evidence was
insufficient to prove that the value of the stolen item was $200
or more. For the reasons that follow, we affirm his conviction.
Background
On January 8, 2001, Robert Collins, a loss prevention
associate at Wal-Mart in Chesterfield County, was alerted to watch
Mitchell in the electronics department. Collins observed Mitchell
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
looking at computers and speaking with a sales associate about the
computers. The associate and Mitchell were pointing at the
computers and looking at the size of the boxes.
Shortly thereafter, Collins saw the defendant "remove[] one
computer from th[e] pallet and place[] it in his shopping cart."
Collins photographed Mitchell taking the computer. Collins then
watched Mitchell push the shopping cart into the electronics
department where he spoke with a man and a woman. The three
individuals walked around the department for a while and then
headed towards the front of the store. Pushing the shopping cart
with the computer in it, Mitchell followed the two other people
who had a shopping cart that contained a VCR and two CD players.
Collins watched as Mitchell "passed all potential points of
sale without paying for [the] computer," exited the first set of
doors, and passed through the electronic surveillance system.
When Mitchell observed Collins and his partner apprehend the two
other individuals, his "eyes opened extremely wide, [and he]
immediately did a 180 with the shopping cart." Mitchell pushed
the shopping cart with the computer towards a closed check-out
lane, where he abandoned it and walked towards the exit door.
Collins approached the defendant and apprehended him.
Collins asked Mitchell if he knew why he had been stopped. He
said "he had no idea." Mitchell first claimed that he "never saw
[the] computer before in [his] life." However, he eventually told
Collins that he wanted to buy the computer for his child. Because
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Mitchell had only $160 in his pocket, Collins asked how he planned
to pay for the computer. Mitchell responded that he could "deal
for the price or bargain for the price."
Mitchell later admitted that he had accompanied the two other
people to the store in a "pick-up truck." In his statement, he
claimed he "put the computer in the cart, but never left the
store."
At trial, Collins testified that the computer has a value of
$798, without tax. Although he never opened the computer box to
inspect the contents, he handled the box and noted that the box
"was factory sealed with the original tape, Hewlett Packard
stickers that go across the seams of the box." He also stated
that he was "very certain of the contents of that box based on the
factory seals, [and the fact] that the next person who picked up
that box paid $798 even [sic] for that box."
Analysis
Mitchell does not contest the Commonwealth's proof that he
stole the computer box. Rather, he argues that the Commonwealth
failed to prove the value of the box and its contents. 1 He argues
that the box may not have contained a computer or that the
computer "may have been destroyed in transit, or suffered from
1
Code § 18.2-95 provides, in pertinent part: "[a]ny person
who . . . commits simple larceny not from the person of another
of goods and chattels of the value of $200 or more . . . shall
be guilty of grand larceny . . . ." Code § 18.2-95(ii).
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some other devaluing event." We find no merit in Mitchell's
contention.
It is well settled that when the sufficiency of the evidence
is challenged on appeal, "[w]e view the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible from the evidence."
Cooper v. Commonwealth, 31 Va. App. 643, 646, 525 S.E.2d 72, 73
(2000). We, therefore, "discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all
the credible evidence favorable to the Commonwealth . . . ."
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998). The credibility of the witnesses and the weight of
the evidence are matters to be determined solely by the trier of
fact. Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382
S.E.2d 258, 259 (1989). Furthermore, the decision of the trial
court will not be disturbed unless plainly wrong or without
evidence to support it. McGee v. Commonwealth, 25 Va. App. 193,
197-98, 487 S.E.2d 259, 261 (1997) (en banc). "If there is
evidence to support the conviction," this Court will not
substitute its judgment for that of the trier of fact, even were
our opinion to differ. Commonwealth v. Presley, 256 Va. 465,
466, 507 S.E.2d 72, 72 (1998).
To convict an individual for grand larceny, the Commonwealth
must prove, inter alia, that the value of the stolen property is
at least equal to the amount fixed by the statute. Wright v.
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Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954). The
"value" attributed to stolen personal property is equivalent to
the fair market value of the property at the time of the theft,
or, if there is no market value, the actual value. Lund v.
Commonwealth, 217 Va. 688, 692, 232 S.E.2d 745, 748 (1977). Like
any other element of a crime, value may be proven by direct or
circumstantial evidence. See Veney v. Commonwealth, 212 Va. 805,
806-07, 188 S.E.2d 80, 81-82 (1972) (finding that circumstantial
evidence proved the value of the stolen item at issue). Evidence
that establishes the retail value of a new item is proof of its
value. Robinson v. Commonwealth, 258 Va. 3, 5, 516 S.E.2d 475,
476 (1999).
The Commonwealth presented sufficient evidence in this case
to prove the retail value of the computer. First, Collins
testified that the computer was priced at $798. Mitchell did not
object to this testimony or challenge Collins' knowledge
concerning the value of the computer. Second, it is
uncontradicted that the box was "factory sealed with the original
tape [and] Hewlett Packard stickers that go across the seams of
the box." Third, the computer was returned to display for sale.
Fourth, the computer was purchased by another customer for $798
and not returned.
In addition, Mitchell's own statements support the trial
court's conclusion that the box contained a computer valued at the
retail price. At trial, when asked, "Did you put a computer in a
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cart," Mitchell said, "Yes, I did." He later said, "The only
thing I'm guilty of, Your Honor, is . . . taking the computer and
putting it in the basket . . ." and "I admit I'm wrong for putting
the computer in the basket . . . . "
Furthermore, the Commonwealth need only exclude "hypotheses
of innocence that flow from the evidence." Dowden v.
Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 442 (2000); accord
McNair v. Commonwealth, 31 Va. App. 76, 86, 521 S.E.2d 303, 308
(1999) (en banc). Whether a "hypothesis of innocence is
reasonable is a question of fact," and a finding by the trial
court is binding on appeal "unless plainly wrong." Grier v.
Commonwealth, 35 Va. App. 560, 571, 546 S.E.2d 743, 748 (2001).
In this case, there was no evidence establishing that the computer
box was empty or that the computer was destroyed in transit or
otherwise defective. Indeed, the computer's presence in a factory
sealed box that was displayed for sale fully supports the
conclusion that it was neither removed from the box nor damaged
before Mitchell placed it in his cart. Therefore, the trial
court's failure to require the Commonwealth to exclude Mitchell's
hypothesis that the box was empty or the computer was damaged was
not plainly wrong.
For the foregoing reasons, Mitchell's conviction for grand
larceny is affirmed.
Affirmed.
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