Tina Marie Juliano, a/k/a Christina Marie Juliano v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Frank and Petty
Argued at Richmond, Virginia
TINA MARIE JULIANO, A/K/A
CHRISTINA MARIE JULIANO
MEMORANDUM OPINION * BY
v. Record No. 2443-07-4 CHIEF JUDGE WALTER S. FELTON, JR.
JULY 21, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
George F. Tidey, Judge Designate
Scott C. Seguin (Spencer & Seguin, PLC, on brief), for appellant.
Richard B. Smith, Special Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Following a jury trial on February 18, 2005, Tina Marie Juliano (“appellant”) was
convicted of grand larceny in violation of Code § 18.2-95, and sentenced to a term of
incarceration, a part of which was suspended. 1 On appeal, she contends the trial court erred by
refusing to grant her proffered petit larceny jury instruction as a lesser-included offense of grand
larceny. For the following reasons, we affirm the judgment of the trial court.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The incident out of which the charge arose took place on November 6, 2001. Appellant
was subsequently arrested on December 19, 2002 and thereafter released on bond. Following
several continuances, appellant’s trial commenced before a jury on February 18, 2005. After the
jury retired to the jury room to deliberate but prior to returning its verdict of guilty, appellant
departed from the courtroom and did not return. Appellant was apprehended over two years
later. Appellant was sentenced on October 6, 2007.
BACKGROUND
Where the issue on appeal is the refusal of the trial court to grant a lesser-included
offense instruction, “even though the Commonwealth prevailed at trial, we must view the
evidence on this issue in the light most favorable to the defendant, the proponent of the
instruction.” Commonwealth v. Leal, 265 Va. 142, 145, 574 S.E.2d 285, 287 (2003).
On November 6, 2001, the Stafford County Sheriff’s Department received a phone call
from Patrick Bailey, the proprietor of the 610 Pawn Shop, advising that Michael Pash (“Pash”)
had attempted to pawn several items. The sheriff’s department had previously alerted Bailey that
Pash had been involved in criminal activity involving pawned goods and asked that he call them
if Pash came to his pawnshop. Shortly after Bailey’s call, officers stopped a car, driven by Pash,
in which appellant was a passenger. Appellant told the officers that recently “stolen stuff out of
the Home Depot” was in the trunk of the car. At the same time, the officers also stopped a gray
minivan occupied by Pash’s brother, Joseph Pash, and appellant’s brother, Mike Juliano.
Officers found “a Bostitch finish nailer,” “two Senco nailers,” and a Bostitch floor stapler, still in
original packaging, in the trunk of the car driven by Pash. Officers also recovered a Paslode
impulse nailer and “two DeWalt drills” from the 610 Pawn Shop.
Later that day, appellant gave a detailed videotaped statement to police.2 She told police
that, on the date of the offense, she accompanied her longtime boyfriend Pash, her brother, and
Pash’s brother to the Home Depot in Stafford County, knowing they intended to steal tools. She
admitted to police that at the Home Depot she placed a Senco nailer in the shopping cart
containing the items the group was stealing. She then waited outside and watched the other
individuals slip the items through Home Depot’s security fence. She admitted assisting in the
2
At trial, that videotape was admitted as evidence and viewed by the jury.
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pawning of the stolen items at the 610 Pawn Shop, using her identification card to pawn the
Paslode nailer.
At trial, Michael Ragnetti, the assistant manager of the Home Depot, testified that a
“Paslode impulse nailer . . . sells [at Home Depot] for about three hundred and ninety-eight
dollars.” 3 He also testified that, at the time the goods were stolen from the Home Depot, DeWalt
drills sold in the $200 range, Bostitch finish nailers sold for just under $200, and Bostitch floor
staplers sold for about $597. Notably, appellant’s evidence, in the form of Pash’s testimony, was
that Pash “could get twenty-five hundred dollars out of the stuff” stolen from Home Depot on
that date.
Pash, appellant’s only witness at trial, testified that he supported himself and appellant,
his longtime girlfriend, by stealing. He told the jury that he had “a good theft record,” and had
been convicted of three felonies and “[a] lot” of misdemeanors involving stealing or lying. He
told the jury that appellant “didn’t have nothing to do” with the Home Depot theft and that she
was at a nearby Wal-Mart during the incident. Pash testified that he, his brother, and appellant’s
brother stole the items recovered by police from Home Depot. He told the jury that appellant
met them at the 610 Pawn Shop a short time later. There, he “pawn[ed] . . . two DeWalt drills,”
stolen from Home Depot earlier that day, for about $140. He further testified that appellant’s
brother attempted to pawn the Paslode impulse nailer, stolen earlier that day from the Home
Depot, but that he did not have an identification card which was required to pawn the item. Pash
told the jury that appellant’s brother did not carry any identification because there was a warrant
for his arrest. Pash stated that appellant’s brother used appellant’s identification card to pawn the
Paslode nailer for $125.
3
A pawn ticket admitted as evidence showed that the stolen Paslode nailer was pawned
for $125 at the 610 Pawn Shop.
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At trial, appellant asked the trial court to give a petit larceny instruction as a
lesser-included offense of grand larceny to the jury. She argued that “the jury could understand
. . . that there is no evidence of value of the property, because we couldn’t prove that these were the
items that were actually stolen from Home Depot.” The trial court found, from the evidence
presented, that the case was not “a petty larceny case” and refused appellant’s proffered instruction.
ANALYSIS
Appellant contends the trial court committed reversible error by denying her proffered jury
instruction on petit larceny as a lesser-included offense.
“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law
has been clearly stated and that the instructions cover all issues which the evidence fairly
raises.’” Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting
Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). “‘We are bound by the
principle that the accused is entitled, on request, to have the jury instructed on a lesser included
offense that is supported by more than a “scintilla of evidence” in the record.’” Yellardy v.
Commonwealth, 38 Va. App. 19, 26, 561 S.E.2d 739, 743 (2002) (quoting Bunn v.
Commonwealth, 21 Va. App. 593, 599, 466 S.E.2d 744, 746 (1996)).
“‘In determining whether to instruct the jury on a lesser-included offense, the evidence
must be viewed in the light most favorable to the accused’s theory of the case.’” Id. (quoting
Hunt v. Commonwealth, 25 Va. App. 395, 400, 488 S.E.2d 672, 674 (1997)) (internal quotation
marks omitted). However, “[i]f the instruction is not applicable to the facts and circumstances of
the case, it should not be given. Thus, it is not error to refuse an instruction when there is no
evidence to support it.” Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001)
(citations omitted). “‘[T]he weight of the credible evidence that will amount to more than a mere
scintilla . . . is a matter to be resolved on a case-by-case basis’ by assessing the evidence in support
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of a proposition against the ‘other credible evidence that negates’ it.” Woolridge v.
Commonwealth, 29 Va. App. 339, 348, 512 S.E.2d 153, 157 (1999) (quoting Brandau v.
Commonwealth, 16 Va. App. 408, 411-12, 430 S.E.2d 563, 565 (1993)) (alteration in original).
During the Commonwealth’s case-in-chief, the jury watched the videotaped interview of
appellant by police on the date of the offense. In that videotape, she fully implicated herself in the
theft of tools from the Home Depot. Appellant’s only evidence during her case was the testimony
of Pash, her longtime boyfriend, who told the jury that she had no involvement in the theft of the
tools from Home Depot.
In order to grant appellant’s requested instruction on the lesser offense of petit larceny,
the trial court necessarily had to determine whether the evidence, viewed in the light most
favorable to the accused’s theory of the case, established by more than a scintilla of evidence that
appellant wrongfully or fraudulently took “‘personal goods of some intrinsic value, belonging to
[Home Depot], without [its] assent, and with the intention to deprive the owner thereof
permanently,’” Yellardy, 38 Va. App. at 26, 561 S.E.2d at 743 (quoting Welch v.
Commonwealth, 15 Va. App. 518, 521-22, 425 S.E.2d 101, 104 (1992)) (internal quotation
marks omitted), and that those items had a “value of less than $200,” Code § 18.2-96.
Appellant’s theory of the case was that Pash stole tools from Home Depot, that appellant
“didn’t have nothing to do” with the theft, and that she merely loaned her identification card to
her brother at the pawnshop to enable him to pawn some of the stolen items. She contended at
trial that there was no proof that the tools admitted as evidence were stolen from Home Depot. If
the jury believed appellant’s defense, the only verdict it could have reached was that appellant
was not guilty of the theft of the goods from Home Depot. If the jury believed the
Commonwealth’s evidence, including appellant’s videotaped statement to police, the only
verdict it could have returned was that she was guilty of grand larceny.
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“We repeatedly have ruled that ‘although the jury’s ability to reject evidence will support
an acquittal, the ability to reject evidence does not supply the affirmative evidence necessary to
support a jury instruction.’” Leal, 265 Va. at 147, 574 S.E.2d at 288 (quoting Commonwealth v.
Vaughn, 263 Va. 31, 37, 557 S.E.2d 220, 223 (2002)).
Our review of the record reveals that no “version of the facts exists that the jury could
have believed which would support” appellant’s proffered petit larceny jury instruction. Hunt,
25 Va. App. at 403, 488 S.E.2d at 676.
We conclude that the trial court did not err in finding that there was not a scintilla of
affirmative evidence to support appellant’s requested petit larceny jury instruction and that it did
not err in refusing to give that instruction. Accordingly, we affirm the judgment of the trial
court.
Affirmed.
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