Mark Weldon Saunders v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Agee
Argued at Richmond, Virginia
MARK WELDON SAUNDERS
MEMORANDUM OPINION * BY
v. Record No. 1794-01-2 JUDGE ROBERT J. HUMPHREYS
OCTOBER 1, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Craig S. Cooley for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Jennifer R. Franklin, Assistant Attorney
General, on brief), for appellee.
Mark Weldon Saunders appeals his conviction, after a bench
trial, for unlawfully taking property having a value of $200 or
more. Saunders contends the trial court erred in finding the
evidence sufficient to support the conviction. Saunders further
argues that the trial court erred in finding the matter to be
criminal in nature, rather than a civil issue arising in the
context of his divorce proceedings. For the reasons that follow,
we affirm the judgment of the trial court.
* 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.
On appeal, Saunders contends the trial court erred in finding
the evidence sufficient to support the conviction. Specifically,
Saunders argues the "weight of the evidence in the case at bar
failed to demonstrate grand larceny" and that the "Commonwealth's
evidence was conjectural at best." We disagree.
When a defendant challenges the sufficiency of the evidence
on appeal, we must give the judgment of the trial court sitting
without a jury the same weight as a jury verdict. Tarpley v.
Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001);
Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645
(1999); Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312,
314 (1998). Indeed, we have a duty to examine the evidence that
tends to support the conviction and to uphold the conviction
unless it is plainly wrong or without evidence to support it.
Code § 8.01-680; Tarpley, 261 Va. at 256, 542 S.E.2d at 763;
Taylor, 256 Va. at 518, 506 S.E.2d at 314; Commonwealth v.
Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998); McCain v.
Commonwealth, 261 Va. 483, 492-93, 545 S.E.2d 541, 547 (2001).
Although it is true that, "suspicion or even probability of
guilt is not sufficient," to support a conviction, "a conviction
may properly be based upon circumstantial evidence." Gordon v.
Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971). As
long as there is "an unbroken chain of circumstances proving the
guilt of the accused to the 'exclusion of any other rational
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hypothesis and to a moral certainty,'" the evidence will be
sufficient and we will uphold such a finding unless it is plainly
wrong or without evidence to support it. Id. (quoting Brown v.
Commonwealth, 211 Va. 252, 255, 176 S.E.2d 813, 815 (1970)).
"'Larceny is defined as 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.' If the goods are valued at $200 or more,
the offense is grand larceny." Walker v. Commonwealth, 25
Va. App. 50, 58, 486 S.E.2d 126, 130 (1997) (quoting Jones v.
Commonwealth, 3 Va. App. 295, 300, 349 S.E.2d 414, 417 (1986)).
Considering the evidence in the light we must, and based upon
the totality of the direct and circumstantial evidence before the
trial court, we find that it was reasonable, and not plainly
wrong, for the trial court to infer: 1) that each of the items
Judy Saunders alleged were stolen existed; 2) that the items were
the personal and separate property of Judy Saunders; 3) that
Saunders took the items with the intent to deprive his wife
permanently of their possession; and, 4) that the value of the
items taken exceeded the statutorily required amount to establish
grand larceny.
Moreover, we find Saunders' argument that the trial court
incorrectly considered this matter as criminal rather than as a
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portion of the divorce proceedings is without merit. 1 First, as
we have found above, the evidence established that the property at
issue was the personal and separate property of Judy Saunders. In
Stewart v. Commonwealth, 219 Va. 887, 252 S.E.2d 329 (1979), the
Supreme Court of Virginia found that a husband may be convicted of
stealing his wife's property. Thus, regardless of the pending
divorce proceedings and related issues of equitable distribution,
by unlawfully taking his wife's personal and separate property,
Saunders committed a criminal act. Accordingly, the judgment of
the trial court is affirmed.
Affirmed.
1
The Commonwealth contends that Saunders' argument in this
regard was not properly presented to the trial court, as
Saunders failed to present the court with "legal grounds to
support" such an argument, nor did he argue that the issue is a
policy matter. However, the purpose of Rule 5A:18 is "to give
the trial court an opportunity to rule intelligently and to
avoid unnecessary appeals, reversals, and mistrials." Marshall
v. Goughnour, 221 Va. 265, 269, 269 S.E.2d 801, 804 (1980).
Although objections must be specific and not general, in this
case we find that Saunders' objection was made with sufficient
certainty in his argument on his motions to strike, so that the
trial judge could understand the precise question he was called
upon to decide. See Darnell v. Commonwealth, 12 Va. App. 948,
953, 408 S.E.2d 540, 542-43 (1991).
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