Clarence M. Collins v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
CLARENCE M. COLLINS
MEMORANDUM OPINION * BY
v. Record No. 2698-99-1 JUDGE JAMES W. BENTON, JR.
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
David J. Whitted, Assistant Public Defender,
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The trial judge convicted Clarence Collins of two counts of
larceny, both of which are a third or subsequent larceny
conviction. See Code § 18.2-104. Collins contends the evidence
was insufficient to support the convictions. We affirm the
judgments.
I.
At trial, Rebecca Smith, manager of the Family Dollar Store,
testified that Collins walked to the perfume counter at her store
and removed four bottles of cologne from a shelf. She saw Collins
return two of the bottles to the shelf and put two bottles in his
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
pocket. Smith was standing about six feet from Collins and
watched Collins leave the store. She followed Collins out of the
store, approached him on the sidewalk, and asked him if he had
anything that belonged to the store. Collins responded, "no," and
walked away. Smith returned to the store and walked toward the
back door, where she observed Collins carrying a bag under his arm
and walking toward the Be-Lo Grocery Store. She testified that
the bag appeared to be a Be-Lo bag.
Lisa Johnson, an employee of the Be-Lo store, testified that
she was preparing to leave work at 3:00 p.m. that same day when
she saw a man, who was wearing a camouflage jacket, put a package
of meat inside his pocket. Standing approximately thirty or forty
feet from the man, Johnson called Fred Moore, the assistant store
manager. When Moore arrived at the front of the store, Johnson
told him what she had seen. Although she had lost track of the
man for several seconds, she pointed to the man as she spoke to
Moore. When Johnson testified in court, she was unable to
identify the man she had seen concealing the meat.
Moore testified that Johnson informed him that a man had put
meat in his jacket and pointed to the man. Moore approached the
man outside of the store and asked him if he had taken anything
from the store. He identified Collins in court as the person he
approached. Without responding to Moore's question, Collins ran
and outdistanced Moore as Moore pursued him. After searching a
short period of time, Moore again saw Collins. Moore approached
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Collins and noticed that he had a Be-Lo bag, which contained items
from the Family Dollar Store. Moore asked to see Collins' receipt
for the items in the bag. Collins responded that "it [was] none
of [Moore's] damn business" and ran again.
Moore signaled a police officer entering the parking lot and
gave him a description of Collins. The officer found Collins and
detained him. Although Collins had five to six empty Be-Lo bags
in his back pocket, he did not then have the bag containing
merchandise. Collins also was not wearing the camouflage jacket.
Seeing that Collins did not have the bag of merchandise,
Moore and Michael Mainello, the Be-Lo manager, searched for it.
Approximately seventy to eighty yards away from where Collins was
standing with the officer, Moore and Mainello found a bag
containing a pack of chicken, chicken salad, and cheese from
Be-Lo. In addition, the bag contained shoes and cologne from the
Family Dollar Store.
Smith later identified merchandise the officer showed her as
merchandise belonging to the Family Dollar Store. Most of the
merchandise still had Family Dollar price stickers. When Smith
was talking to the officer, she identified Collins as the same
person she had seen in the Family Dollar Store.
The trial judge convicted Collins of two counts of larceny as
third or subsequent offenses. He sentenced Collins to five years
in prison on each charge, with three years suspended on each
charge, for an active jail sentence of four years.
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II.
"In every criminal prosecution the Commonwealth must
establish beyond a reasonable doubt all elements of the offense
and that the accused did commit it." Harward v. Commonwealth, 5
Va. App. 468, 470, 364 S.E.2d 511, 512 (1988). Larceny, a common
law offense in Virginia, "'is the wrongful taking of the goods of
another without the owner's consent and with the intention to
permanently deprive the owner of possession of the goods.'" Acey
v. Commonwealth, 29 Va. App. 240, 246, 511 S.E.2d 429, 431 (1999)
(citation omitted).
"[W]hen considering the sufficiency of the evidence on appeal
of a criminal conviction, we must view all the evidence in the
light most favorable to the Commonwealth and accord to the
evidence all reasonable inferences fairly deducible therefrom."
Clarke v. Commonwealth, 32 Va. App. 286, 300, 527 S.E.2d 484, 491
(2000) (citations omitted). "Direct evidence is evidence that, if
believed [by the trier of fact], resolves a matter in issue."
Floyd v. Commonwealth, 31 Va. App. 193, 198, 522 S.E.2d 382, 384
(1999).
Smith's testimony was sufficient to prove beyond a reasonable
doubt that Collins was in the Family Dollar Store, put two bottles
of cologne in his pocket, and left the store without paying for
the merchandise. Likewise, Johnson's testimony was sufficient to
prove beyond a reasonable doubt that the man, whom Moore
identified as Collins, put meat in his coat inside the Be-Lo store
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and went outside the store. Moore's testimony proved that Collins
did not pay for the meat.
The testimony of Moore and Mainello that the bag of
merchandise was found a block away from the Be-Lo store and
seventy yards from the place Collins was detained is
circumstantial evidence that corroborates the direct evidence of
Collins' theft of the merchandise. Indeed, Moore testified that
he had earlier confronted Collins while he was carrying the bag of
merchandise.
In summary, the direct evidence alone was sufficient to prove
beyond a reasonable doubt all the elements of larceny including
the identity of Collins as the thief. The Commonwealth proved
that Collins took the items wrongfully and impermissibly from the
stores with the requisite intent. The circumstantial evidence
supplemented this direct evidence in a manner sufficient to cure
any conceivable deficiency in the direct evidence.
Accordingly, we affirm the convictions.
Affirmed.
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