Kimathy J. Branch v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia
KIMATHY J. BRANCH
MEMORANDUM OPINION * BY
v. Record No. 0220-09-1 JUDGE ROBERT P. FRANK
MARCH 9, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
Jessica M. Bulos, Assistant Appellate Defender (Office of the
Appellate Defender, on briefs), for appellant.
John W. Blanton, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
Kimathy J. Branch, appellant, was convicted, in a bench trial, of grand larceny, in violation
of Code § 18.2-95. On appeal, he contends the trial court erred in finding that the value of the stolen
goods was $200 or more.1 For the reasons stated, we reverse and remand.
BACKGROUND
“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) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, on July 5, 2008, T.B. arrived at his vacant
rental property to find that every room had been vandalized, including the bathrooms and kitchen in
which the sinks had been “torn off the walls.” An outside air handler was “in disrepair.” Copper,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant does not challenge that he was the perpetrator of the larceny.
both inside the premises and outside, was removed. The property owner testified the property had
been vandalized “for copper or metal.” The outside central air conditioning unit had been stolen as
well. When asked the value of the property taken, T.B. responded, “The insurance company
estimated it between $29,000 and $32,000.” On cross-examination, when asked what other than
copper was taken from the premises, T.B. continued, “it’s not so much what was missing, but what
was the damage that was done.” There was no further testimony about the value of the stolen items.
After the Commonwealth rested, appellant moved to strike the evidence, arguing the
evidence was insufficient to prove he was the perpetrator. That motion was denied. Appellant put
on no evidence and renewed his motion to strike on the same basis. The trial court found the
evidence sufficient to convict, based on fingerprint evidence. At that point, appellant raised the
value issue. The trial court responded that it did not know the exact value of the stolen goods, “but
if you take a low number $29,000, there is plenty of legal room there to come to the conclusion that
whatever was taken was worth more than $200.” The trial court continued:
Well, I agree that the insurance company is probably looking at
something else entirely when they set a claim, but the only
testimony we have is $29,000 to $32,000. I certainly would use
the low figure. And as I said, it’s not close. If it was close I’d give
him the benefit of the doubt on the grand larceny as opposed to
petty larceny, but there’s so much disparity there. I mean, even if
you reduce it 90 percent, you’ve still got $2,900.
At sentencing, the trial court refused to order restitution, concluding that “probably a lot
of the expense . . . was damage that occurred to the premises as a part of ripping out the copper
piping.” The trial court noted appellant was charged with grand larceny, not destruction of
property. The trial court then concluded it would not order restitution “simply because I don’t
have a number.”
This appeal followed.
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ANALYSIS
On appeal, appellant contends that because the insurance estimate of $29,000 to $32,000
included damage done to the vandalized property, as well as the stolen copper pipes and air
conditioning unit, the value of the stolen items is based on pure speculation.
When considering a challenge that the evidence presented at trial is insufficient, 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.” Davis v. Commonwealth, 39
Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002).
Larceny, a common law crime, is defined as the wrongful or fraudulent taking of
another’s property without his permission and with the intent to permanently deprive the owner
of that property. Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001).
Grand larceny is the taking, not from the person of another, of goods having a value of $200 or
more. Code § 18.2-95; Tarpley, 261 Va. at 256, 542 S.E.2d at 763-64.
The monetary amount specified in Code § 18.2-95 is an essential
element of the crime of grand larceny, and the Commonwealth
bears the burden of proving this element beyond a reasonable
doubt. Although proof that stolen items have some value will
sustain a conviction for petit larceny, a conviction for grand
larceny requires proof that the value of the stolen goods is at least
$200.
Britt v. Commonwealth, 276 Va. 569, 574, 667 S.E.2d 763, 765-66 (2008) (citations omitted).
Clearly, the Commonwealth must prove that the items stolen, as distinguished from those
not stolen, have a value of $200 or more. Jones v. Commonwealth, 3 Va. App. 295, 300-01, 349
S.E.2d 414, 418 (1986).
Appellant cites Britt, 276 Va. 569, 667 S.E.2d 763, to support his position. The
Commonwealth argues that Britt is distinguishable from this appeal.
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In Britt, the evidence proved that the defendant broke into a convenience store and stole
numerous packs of cigarettes. 276 Va. at 571, 667 S.E.2d at 764. After the break-in, other
cigarette packs were found on the floor inside the store. Id. at 572, 667 S.E.2d at 764. At trial,
the store owner testified that the total value of the cigarette packs – both those stolen and those
found on the floor – was $410.59. Id. The Supreme Court of Virginia, in reversing Britt’s
conviction, held that because the total value included items that were not stolen, the amount was
not competent evidence of the value of the items removed from the store. Id. at 575-76, 667
S.E.2d at 766.
Similarly, in this case, T.B. testified that the insurance company estimated the value of
the items taken was $29,000 to $32,000. However, he later testified that it was not just what was
stolen, but what was damaged. The Commonwealth had the opportunity to ask follow-up
questions regarding T.B.’s opinion as to the value of the stolen goods, as opposed to the property
damage, but it failed to do so.
Neither T.B. nor any other witness provided evidence of the specific value of the items
stolen from T.B.’s property. In this case, the trial judge did not have sufficient evidence that the
value of the goods stolen from T.B.’s property was at least $200.
The Commonwealth argues that because appellant failed to object to T.B.’s initial
testimony that the value of the items taken was $29,000 to $32,000, the fact finder could
consider that testimony. However, it is clear from the trial court’s pronouncements that it
rejected that testimony as the value. The trial court indicated it did not know the value of the
stolen items. Further, while there was testimony that “all” the copper had been removed from
the building, there was no testimony as to the cost of the copper or the amount of copper stolen.
The record does not reveal the value of the central air conditioning unit. Nor was there evidence
of the unit’s age, condition, or operability.
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Most telling was the trial court’s failure to order restitution as a part of sentencing
because it had insufficient evidence to determine the amount stolen as opposed to the amount of
property damage. The trial court observed, as to restitution, “I don’t think it has to be a beyond a
reasonable doubt number, but I think it does have to be sort of a preponderance of the evidence
. . . and I still don’t think that’s in the record.”
Fact finders are not required to leave their common sense at the courtroom door. Indeed,
as fact finders, they are entitled to use their common sense in considering the evidence. See
Schneider v. Commonwealth, 230 Va. 379, 383, 337 S.E.2d 735, 737 (1985). However,
common sense is not evidence and cannot supply a missing element of an offense when the
evidence provides no basis for such an inference. There must be sufficient evidence presented at
trial to prove the charged offense.
In this case, despite the extremely large numbers provided by the insurance estimate,
there is no evidence indicating how much of that estimate was for stolen property, rather than
property damage. Therefore, the trial court had no basis to determine the value of the copper or
the air conditioning unit. In the absence of other evidence, the trial judge could not have
determined the value of the stolen property without engaging in speculation. Thus, the evidence
was insufficient to prove that the value of the goods stolen was $200 or more.
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CONCLUSION
The trial judge erred in finding the Commonwealth’s evidence sufficient to convict
appellant of grand larceny. We therefore reverse the judgment of the trial court and remand the
case to the circuit court for a new sentencing hearing on a conviction of petit larceny. 2
Reversed and remanded.
2
Both parties have agreed to re-sentencing in this case. Appellant agreed to such a
disposition during oral argument. The Commonwealth filed a letter with the Court on January
20, 2010, consenting to imposition of a new sentence on the lesser offense in the event of a
reversal. This appeal is governed by Commonwealth v. South, 272 Va. 1, 630 S.E.2d 318(2006), in which both parties agreed to a remand for a new sentencing hearing. In Britt, 276 Va.
569, 667 S.E.2d 763, the Supreme Court of Virginia reversed this Court and remanded the case
for a new trial on the lesser charge, because both parties had not consented to imposition of a
new sentence only. See also Waller v. Commonwealth, 278 Va. 731, 738, 685 S.E.2d 48, 51
(2009).
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