Warren Bailey Anderson, Jr. v. Commonwealth of Virginia ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Huff
UNPUBLISHED
Argued at Salem, Virginia
WARREN BAILEY ANDERSON, JR.
MEMORANDUM OPINION* BY
v. Record No. 0611-13-3 JUDGE ROBERT J. HUMPHREYS
MARCH 4, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
John T. Cook, Judge
P. Scott De Bruin for appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Warren Bailey Anderson, Jr. (“Anderson”) appeals his conviction for grand larceny in
violation of Code § 18.2-95 by the Campbell County Circuit Court (the “trial court”).
Anderson’s single assignment of error is that the evidence was insufficient to convict him of
grand larceny because the Commonwealth failed to establish that the value of the property was
$200 or greater at the time it was stolen.
When the sufficiency of the evidence is challenged on appeal, our review is guided by
well-established principles—“[t]his Court ‘must examine the evidence that supports the
conviction and allow the conviction to stand unless it is plainly wrong or without evidence to
support it.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011) (quoting
Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008)). This Court’s
function is not to reweigh the credibility of the evidence. See Couture v. Commonwealth, 51
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Va. App. 239, 248, 656 S.E.2d 425, 429-30 (2008). Rather, the relevant inquiry is whether “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “In sum, ‘[i]f there is evidence to
support the conviction, the reviewing court is not permitted to substitute its judgment, even if its
view of the evidence might differ from the conclusions reached by the finder of fact at the trial.’”
McNeal, 282 Va. at 20, 710 S.E.2d at 735 (alteration in original) (quoting Commonwealth v.
Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998)). Thus, viewing the facts in the light most
favorable to the Commonwealth, if any rational trier of fact could have found that the stolen
property was worth $200 or more at the time it was stolen then the evidence is sufficient to
support Anderson’s conviction.
A conviction for grand larceny pursuant to Code § 18.2-95 requires proof that a
defendant wrongfully or fraudulently took another’s property valued at $200 or more, without
the owner’s permission, and with the intent to deprive the owner of that property permanently.
See Crawford v. Commonwealth, 281 Va. 84, 109, 704 S.E.2d 107, 122 (2011). Proof that the
value of the stolen goods is at least $200 “is an essential element of the crime of grand larceny,
and the Commonwealth bears the burden of proving this element beyond a reasonable doubt.”
Britt v. Commonwealth, 276 Va. 569, 574, 677 S.E.2d 763, 765 (2008). The relevant value of
the stolen property is its “current value” or “fair market value,” Robinson v. Commonwealth,
258 Va. 3, 5-6, 516 S.E.2d 475, 476 (1999), which “is measured as of the time of the theft,”
Parker v. Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997).
The Commonwealth may prove the value of the stolen property in a number of ways,
“including the testimony of a lay person as to the property’s fair market value, the opinion of an
expert, ʻor by traditional accounting principles, starting with the original cost of the item and
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then factoring in depreciation or appreciation.’” Baylor v. Commonwealth, 55 Va. App. 82,
87-88, 683 S.E.2d 843, 845 (2009) (quoting DiMaio v. Commonwealth, 46 Va. App. 755, 764,
621 S.E.2d 696, 701 (2005)). “It is well established that ʻthe 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.’” Burton v. Commonwealth, 58
Va. App. 274, 280-81, 708 S.E.2d 444, 447 (2011) (emphasis added) (quoting Walls v.
Commonwealth, 248 Va. 480, 482, 450 S.E.2d 363, 364 (1994)); accord Snyder Plaza Props.,
Inc. v. Adams Outdoor Adver., Inc., 259 Va. 635, 644, 528 S.E.2d 452, 458 (2000) (“We have
recognized the general rule that an owner of property is competent and qualified to render a lay
opinion regarding the value of that property.”). Additionally, “[i]t is not necessary to show that
[the owner] was acquainted with the market value of such property or that he is an expert on
values” because “[h]e is deemed qualified by reason of his relationship as owner to give
estimates of the value of what he owns.’” Crowder v. Commonwealth, 41 Va. App. 658, 664
n.3, 588 S.E.2d 384, 387 n.3 (2003) (quoting King v. King, 40 Va. App. 200, 212-13, 578 S.E.2d
806, 813 (2003)). “The weight of such testimony is, of course, affected by his knowledge of the
value.” Haynes v. Glenn, 197 Va. 746, 750-51, 91 S.E.2d 433, 436-37 (1956) (quoting 20 Am.
Jur. Evidence § 892). However, determining “ʻthe weight of [the owner’s] testimony (which
often would be trifling) [is] left to the [factfinder].’” Id. (quoting 3 Wigmore on Evidence
§ 716).
Anderson was convicted of stealing a radio and the surrounding dashboard customized to
fit the radio, also known as a “radio bezel,”1 from Whitney Barker’s 1982 Ford pickup truck. At
1
Barker described the “radio bezel” as “wood surrounded from the top of the dash where
it goes around my clock, it’s a digital clock in the very top, it goes around that . . . goes around
the CD player, which it had been, you know, custom cut out for that specific deck.” Barker did
not purchase a new radio enclosure, but had the existing dashboard in his 1982 truck modified to
have the radio installed.
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his bench trial, Anderson stipulated to all the elements of larceny, but he disputed that the value
of the stolen property was sufficient to convict him of grand larceny. In order to convict him, the
Commonwealth was required to prove that two items’ combined value was equal to or greater
than $200: (1) the radio itself and (2) the customized dashboard removed with the radio. On
appeal, Anderson argues that the Commonwealth only established that the radio alone was worth
$175-$180 a year and a half before it was stolen and the trial court improperly considered the
cost of labor in finding that the $200 statutory requirement was satisfied.2 The Commonwealth
asserts that “[b]ased on the victim’s contemporaneous valuation of $250 and the evidence that
the radio and the dashboard ensemble was recently purchased for approximately $400, minus
speakers and installation fees, the trial court could reasonably conclude that the combined value
of the ensemble was worth at least $200 at the time it was stolen.”
The cost breakdown of parts and labor included in the $400 original installation price is
not determinative or relevant to this Court’s review of the record. Rather, the resolution of this
case turns upon one fact. Barker, the owner of the stolen property, testified that at the time the
property was stolen, “just the CD player and that piece . . . [were worth] at least two hundred and
fifty dollars.” Barker was unquestionably competent to testify as to the value of his own
property. Anderson was free to impeach Barker’s valuation of the stolen property—to
2
Relying on Lund v. Commonwealth, 217 Va. 688, 232 S.E.2d 745 (1977), Anderson
argues that because the dashboard was a “custom feature” “it had no market value and its actual
value must be shown.” However, this case is distinguishable from Lund, and its successors
Baylor and Little v. Commonwealth, 59 Va. App. 725, 722 S.E.2d 317 (2012), where the
Commonwealth was required to prove “actual value” because there was “no market value” for
items that could not be sold or resold. See Lund, 217 Va. at 692-93, 232 S.E.2d at 748 (finding
that computer printouts had no market value); Baylor, 55 Va. App. at 89, 683 S.E.2d at 846(assuming without deciding that because the stolen property, used catalytic converters, could not
be legally resold there was no market for used catalytic converters and thus no fair market
value); Little, 59 Va. App. at 731, 722 S.E.2d at 320 (finding that cell phone “demo” phones had
no clear market value because they were not sold by AT&T). While the market for dashboard
radio enclosures for 1982 pickup trucks may be limited, that does not mean that a market does
not exist at all.
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demonstrate, for example, that his valuation was improperly predicated on the cost of labor.
However, determining the appropriate weight of Barker’s testimony in the light of any
equivocation or perceived lack of specificity was an exclusive function of the fact finder, in this
case the trial court. See Haynes, 197 Va. at 750-51, 91 S.E.2d at 436-37; see also Pelletier v.
Commonwealth, 42 Va. App. 406, 422, 592 S.E.2d 382, 390 (2004) (“We do not evaluate the
weight of evidence on appeal; that function resides with the trier of fact.”).
Considering Barker’s testimony in its entirety, the trial court accepted Barker’s $250
valuation and found that the Commonwealth proved that the stolen property was worth over
$200. This Court “accept[s] the trial court’s determination of the credibility of witness testimony
unless, ʻas a matter of law, the testimony is inherently incredible.’” Nobrega v. Commonwealth,
271 Va. 508, 518, 628 S.E.2d 922, 927 (2006) (quoting Walker v. Commonwealth, 258 Va. 54,
70-71, 515 S.E.2d 565, 575 (1999)). Therefore, because the record is devoid of any suggestion
that Barker’s testimony was “inherently incredible,” we must accept the trial court’s
determination that Barker’s testimony as to the value of the stolen property was credible.
Consequently, the evidence, as accepted by the trier of fact, is sufficient to prove the value of the
radio and the dashboard enclosure exceeded $200 at the time they were stolen, and thus, is
sufficient to support Anderson’s conviction for grand larceny. Accordingly, we affirm the trial
court’s conviction.
Affirmed.
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