Calvin Burnell Bailey, Jr. v. Commonwealth of Virginia ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and AtLee
UNPUBLISHED
Argued at Norfolk, Virginia
CALVIN BURNELL BAILEY, JR.
MEMORANDUM OPINION* BY
v. Record No. 0013-16-1 JUDGE RICHARD Y. ATLEE, JR.
APRIL 25, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
J. Barry McCracken, Assistant Public Defender, for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
A judge of the Circuit Court of the City of Norfolk convicted Calvin Burnell Bailey, Jr.
of grand larceny. The sole issue on appeal is the value of the stolen property. We affirm.
“On appeal, we will consider the evidence in the light most favorable to the
Commonwealth, as it prevailed in the trial court.” Whitehurst v. Commonwealth, 63 Va. App.
132, 133, 754 S.E.2d 910, 910 (2014). Bailey stole a bicycle, which was never recovered. The
owner of that bicycle testified that he believed it was worth “about $518,” because that was what
he paid for it in Greece approximately three and a half years earlier. He testified that he “took
good care of” the bicycle and that it was in “[e]xcellent condition.” In response to a question
from the trial court about the value of the bicycle, the owner testified: “I’m going to say it was
worth what I paid for it, Your Honor. I mean, it’s still going to cost me that much to replace it.”
Bailey did not object to the testimony about the purchase price or condition of the bicycle.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Bailey moved to strike, both at the conclusion of the Commonwealth’s case-in-chief and
at the conclusion of his own evidence. As relevant to this appeal, he argued that the evidence of
the bicycle’s value was insufficient. The trial court denied both motions, convicted Bailey, and
sentenced him to one year and four months in the penitentiary. Bailey appealed.
The indictment charged that Bailey “did unlawfully and feloniously steal property having
a value of two hundred dollars ($200) or more,” in violation of Code § 18.2-95. Bailey asserts
that “the evidence was insufficient to permit a reasonable trier of fact to conclude that the value
of the stolen bicycle was $200 or more at the time of the theft.” When reviewing evidentiary
sufficiency, “we ‘presume the judgment of the trial court to be correct’ and reverse only if the
trial court’s decision is ‘plainly wrong or without evidence to support it.’” Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Davis v.
Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)).
Code § 18.2-95 provides, in part, that “[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.” The value of stolen property is an element of the offense of grand larceny,
and must be proven beyond a reasonable doubt. Parker v. Commonwealth, 254 Va. 118, 120,
489 S.E.2d 482, 483 (1997). “Generally, the opinion testimony of the owner of personal
property is competent and admissible on the question of the value of such property, regardless of
the owner’s knowledge of property values.” Walls v. Commonwealth, 248 Va. 480, 482, 450
S.E.2d 363, 364 (1994); see also Crowder v. Commonwealth, 41 Va. App. 658, 664 n.3, 588
S.E.2d 384, 387 n.3 (2003) (“It is not necessary to show that [the property owner] was
acquainted with the market value of such property or that he is an expert on values. He is
deemed qualified by reason of his relationship as owner to give estimates of the value of what he
owns.” (quoting King v. King, 40 Va. App. 200, 212-13, 578 S.E.2d 806, 813 (2003))). Value
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“is measured as of the time of the theft,” although “the original purchase price may be admitted
as evidence of its current value.” Parker, 254 Va. at 121, 489 S.E.2d at 483. Bailey did not
object when the bicycle owner testified about the bicycle’s value, and does not argue on appeal
that the trial court should have excluded such testimony. Rather, he asserts that such testimony
was insufficient to meet the felony value threshold. We disagree.
Bailey cites Baylor v. Commonwealth, 55 Va. App. 82, 683 S.E.2d 843 (2009), for the
proposition that:
[W]here . . . there is an absence of evidence linking replacement
value to an accurate determination of actual or fair market value,
mere evidence of replacement value alone is insufficient as a
matter of law to support an inference by the fact finder that the
value of stolen property necessarily exceeds the statutory
threshold.
Id. at 90, 683 S.E.2d at 846-47. In that case, the Commonwealth proved that Baylor stole several
catalytic converters. The owners of the catalytic converters testified that the cost to replace the
property would be well in excess of $200. However, there was no evidence of “the original cost
of the converters or their fair market value at the time of the larceny.” Id. at 86, 683 S.E.2d at
845. A panel of this Court reversed Baylor’s convictions because the Commonwealth had not
shown the actual value of the stolen property, stating that “where an item has no market value,
the actual value must be shown.” Id. at 88, 683 S.E.2d at 845 (emphasis omitted) (quoting
DiMaio v. Commonwealth, 46 Va. App. 755, 764, 621 S.E.2d 696, 701 (2005)).
This case is distinguishable from Baylor for two reasons. First, the stolen catalytic
converters in Baylor were a specialized category of property whose resale is governed by statute.
See id. at 86 n.3, 683 S.E.2d at 845 n.3 (discussing the restrictions contained in Code
§ 59.1-136.1 et seq. under which used catalytic converters may only be sold in Virginia to scrap
metal dealers). By contrast, we are unaware of any statutory restrictions on the resale of used
bicycles. Second, the owners of the catalytic converters testified only to the replacement value
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of the stolen property. Here, the bicycle owner testified to the purchase price of the bicycle and
gave his opinion as to the replacement value of the bicycle at the time of the theft. Although he
believed the purchase price and replacement value were the same ($518), the two numbers
nevertheless represent distinct assessments of value: one is the original cost of the new bicycle,
and the other is the owner’s opinion of the cost to replace that bicycle three and a half years later.
Baylor observed that “replacement value alone is insufficient as a matter of law to support an
inference by the fact finder that the value of stolen property necessarily exceeds the statutory
threshold.” Id. at 90, 683 S.E.2d at 846-47 (emphasis added). In this case, however, the bicycle
owner testified both to replacement value and to original cost.
Finally, Bailey points out that “[w]hile 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.’” Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981) (per
curiam) (quoting Gertler v. Bowling, 202 Va. 213, 215, 116 S.E.2d 268, 270 (1960)). In Dunn,
the stolen property consisted of $2.20 in cash and a typewriter that had been purchased new ten
years earlier for $150. (At the time of the theft, the felony threshold was only $100). Other than
testifying that the typewriter still worked, the property owner in Dunn did not testify to the
condition or value of the property at the time of the theft. The Supreme Court reversed Dunn’s
conviction due to the Commonwealth’s failure to account for depreciation of the stolen property.
Here, however, the facts are meaningfully different: the bicycle’s purchase price was more than
two and a half times the felony threshold, the depreciation period was much shorter, and the
property owner testified (without objection) to the condition and value of the property at the time
of the theft. Although the Commonwealth offered no specific evidence about depreciation rates
for bicycles, the facts were sufficient to permit the fact finder to infer that the bicycle had not
depreciated in value below the felony threshold.
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For the preceding reasons, we find that the trial court was not plainly wrong when it
concluded that the value of the bicycle was $200 or more, and we affirm Bailey’s conviction.
Affirmed.
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