James Thomas Curry v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
JAMES THOMAS CURRY
MEMORANDUM OPINION * BY
v. Record No. 0722-99-1 JUDGE RICHARD S. BRAY
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Lawrence A. Martin (Coyle & Martin, on
brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James Thomas Curry (defendant) appeals convictions in a bench
trial for statutory burglary, a related third offense petit
larceny, and attempted grand larceny. He contends that the
evidence was insufficient to (1) establish the requisite value of
the property subject of the attempted grand larceny, and (2)
identify defendant as the perpetrator of the burglary and petit
larceny. We agree and reverse the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
The credibility of the witnesses, the weight accorded testimony,
and the inferences drawn from the proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989). The judgment of the
trial court will not be disturbed unless plainly wrong or
unsupported by evidence. See Code § 8.01-680.
I. The Attempted Grand Larceny
On July 16, 1998, John Maner noticed that the doors of his
shed, previously closed, were ajar. Upon investigation, he
discovered defendant inside, purportedly "looking for his dog,"
and "chase[d] him away." Returning to the shed, Maner discovered
a bucket of tools "dumped out" on the floor, "other tools . . .
stolen," and "the lock . . . tying [two adult and two children's]
bicycles together . . . damaged beyond usage," "cut." Maner
testified that he had owned the two "adult bikes" for a "year or
two" and valued them, "based upon how much they cost," at $200.
No value of the children's bicycles, or other property, was
introduced into evidence.
"Grand larceny consists of the theft, not from the person
of another, of goods and chattels valued at $200.00 or more."
Robinson v. Commonwealth, 258 Va. 3, 5, 516 S.E.2d 475, 476
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(1999); see Code § 18.2-95(ii). "The value of the goods
specified in the statute is an essential element of the crime,
and the Commonwealth must prove that element beyond a reasonable
doubt." Walls v. Commonwealth, 248 Va. 480, 481, 450 S.E.2d
363, 364 (1994). "The value of the stolen property is measured
as of the time of the theft[.]" Parker v. Commonwealth, 254 Va.
118, 121, 489 S.E.2d 482, 483 (1997).
While the original purchase price of an item
may be admitted as evidence of its current
value, there must also be "due allowance for
elements of depreciation." Without a
showing of the effect of age and wear and
tear on the value of an item such as a
typewriter, the [fact finder] might be
misled to believe that original price equals
current value.
Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792
(1981) (per curiam) (emphasis added) (citation omitted). "The
[Court's] use of the words 'such as a typewriter' in [Dunn] is
significant. It is common knowledge that . . . equipment
generally depreciates in value over time[.]" Lester v.
Commonwealth, 30 Va. App. 495, 505, 518 S.E.2d 318, 322 (1999).
Here, the Commonwealth's evidence established only the value
of two adult bicycles at the time of purchase, a "year or two"
prior to the attempted larceny. Since the original "cost" was
only $200 and recognizing that a mechanical device, such as a
bicycle, would doubtless depreciate, we find that the evidence was
insufficient to prove the $200 value requisite to the offense.
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II. The Petit Larceny and Statutory Burglary
On the evening of July 12, 1998, Richard Jones observed "a
man entering [his neighbor's] garage, . . . leaving with" "a red
box" "under his arm and running off." After unsuccessfully
pursuing the thief, Jones returned to report the incident to his
neighbor and summon police. Because he "never saw his face,"
Jones could only describe the perpetrator's clothing, a "white
shirt and black pants." Sometime thereafter, police transported
Jones to "a light up" of an individual then in custody and dressed
in like clothing. Jones acknowledged a "strong possibility it was
him because of the clothes," but was unable to identify the
"face." At trial, he identified defendant only as "the person
they lit up."
The instant facts are substantially similar to those before
the Supreme Court in Cameron v. Commonwealth, 211 Va. 108, 175
S.E.2d 275 (1970). There, an eyewitness observed only the
clothing and the "backs" of two individuals running from a robbery
scene. He recalled to police the relative height, race and
clothing of each suspect. Cameron and his companion were
apprehended 35 minutes after the crime, eight blocks from the
scene, and taken into custody. Later, at police headquarters, the
witness "identified the [two] by their clothing," although "he
couldn't be positive." In reversing the conviction, the Court
noted:
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There was no witness who could identify
the defendant by his facial features as one
. . . who committed the crime. Neither the
victim nor [the eyewitness] saw the faces of
the boys who committed the crime. The
strongest evidence against the defendant was
the testimony of [the eyewitness] who could
only say that defendant and his companion
were "wearing the same type of clothes" as
the two boys who ran . . . and that one
. . . was short and one was tall, as were
the defendant and his companion.
Id. at 111, 175 S.E.2d at 277.
The evidence before the Court on this record is less
compelling than in Cameron. The testimony does not disclose
when or where police apprehended defendant, thus providing no
nexus in time or place to the offense, and Jones described only
the clothing worn by the intruder, without mention of any
physical characteristics matching defendant. Such evidence "may
be said to raise a strong suspicion of guilt," but, clearly,
"does not exclude every reasonable hypothesis except that of
guilt." Id.
Accordingly, we reverse the convictions of petit larceny
and related burglary and the attempted grand larceny. However,
while we dismiss the petit larceny and burglary indictments, we
remand the attempted grand larceny prosecution for such further
proceedings as the Commonwealth may deem appropriate. See
Parker, 254 Va. at 121, 489 S.E.2d at 484.
Reversed and dismissed, in
part, and reversed and
remanded, in part.
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