Kenneth Wayne Morris, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Fitzpatrick
Argued at Richmond, Virginia
KENNETH WAYNE MORRIS, S/K/A
KENNETH WAYNE MORRIS, SR.
MEMORANDUM OPINION * BY
v. Record No. 1606-96-2 JUDGE JOHANNA L. FITZPATRICK
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Jay T. Swett, Judge
(Paul H. Schwartz, on brief), for appellant.
Appellant submitting on brief.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Kenneth Wayne Morris, Sr. (appellant) was convicted in a
bench trial of grand larceny pursuant to Code § 18.2-95 and
sentenced to four years in prison, with three years suspended.
On appeal, he argues that the trial court erred in (1)
determining the value of the motorcycle to be $200 or more, and
(2) finding appellant had the intent to permanently deprive
Gloria Walters (Walters) of her motorcycle. Finding no error, we
affirm.
On the morning of August 12, 1995, appellant knocked on
Walters' front door. When she answered the door, appellant
inquired whether a motorcycle located in "the rear of the house"
was for sale. Although initially Walters told appellant that she
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
"wasn't really interested in selling," she agreed to give
appellant the motorcycle as payment for doing work on her house.
Walters and appellant examined the motorcycle after unlocking
it. Appellant then produced a blank contract form and listed the
work to be done on Walters' house. 1 The parties agreed that the
work was to be started within approximately two weeks from the
date of the contract.
Later that day, after appellant left the property without
finishing the lawn as agreed, Walters noticed that the motorcycle
and the key to the motorcycle were missing. She contacted
appellant, who admitted having them. She requested that
appellant return the motorcycle to her at that time and on
several subsequent occasions. Appellant never returned the bike
nor did he complete any of the work under the contract.
Appellant gave the motorcycle to his cousin.
At trial, the evidence established that Walters purchased
the motorcycle in 1988 for $3,200-$3,300, that it was a limited
production model which had been specifically customized, that it
had less than 750 miles on it, and that she "wanted about $4500
1
The contract listed the "Service(s) to be rendered" as
follows: "to do gutters on house facial boards if bad brick to
be filled in holes and replace if bad and to paint outside of
house and scrape old paint off porch boards replace in front of
door and ceiling fix in dining room and door on celler [sic],
clean shingles of roof." Payment was described as follows:
"Total Amount Due on Completion of Work: $ for 88 Honda
Inttersceter Bike." Both parties signed the contract beneath the
line reading, "PAYMENT WILL BE DUE IN FULL UPON COMPLETION OF
WORK." (Emphasis added).
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for it, if [she] were to sell it. [She] would have, perhaps,
settled for at least over what [she] paid for it, . . . at least
$3500 at the very rock bottom." The evidence also established
that the motorcycle had been damaged in 1991, and had been left
outside since 1991-1992.
Appellant testified that he would "get the bike for partial
payment" and that after he "finished the work [he'll] come and
get the title," that both he and Walters loaded the motorcycle
onto his truck, that she was aware he was taking the motorcycle,
and that she did not contact him during the following two-week
period to ask for the return of the motorcycle.
In overruling appellant's motion to strike at the close of
the evidence, the trial court found as follows:
I find, listening and observing the
witnesses, coupled with the defendant's prior
criminal conviction, which is something which
the court considers as to the defendant's
credibility, that the version of events is
far more likely to have occurred and far more
credible as explained by Ms. Walters. I find
it very difficult to adopt the version
described by the defendant . . . [which]
stretches this Court's reasonable grounds of
credibility. I find that the version
happened essentially as Ms. Walters testified
to. . . . [U]nder these circumstances, absent
any permission, absent any discussion about
taking the motorcycle, coupled with the
subsequent explanations and refusals to
return the motorcycle that [appellant], it's
fair to conclude, and the Court does so, that
when he went back on August 12th to take the
motorcycle that he intended to permanently
deprive Ms. Walters of the motorcycle,
particular[ly] in light of his own testimony
that he was simply going to hold it as down
payment yet it turns up in the hands of
somebody else when he never does the work.
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"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987); see also Gooden
v. Commonwealth, 226 Va. 565, 571-72, 311 S.E.2d 780, 784 (1984).
The inferences to be drawn from proved facts are within the
province of the fact finder as long as they are reasonable and
justified. David v. Commonwealth, 2 Va. App. 1, 3, 340 S.E.2d
576, 577 (1985) (citing Patler v. Commonwealth, 211 Va. 448, 457,
177 S.E.2d 618, 624 (1970), cert denied, 407 U.S. 909 (1972)). A
conviction will be affirmed unless plainly wrong or unsupported
by the evidence. Higginbotham v. Commonwealth, 216 Va. 349, 352,
218 S.E.2d 534, 537 (1975).
VALUE OF THE MOTORCYCLE
It is well settled that the value of the stolen property is
an essential element of the offense, and that the burden is on
the Commonwealth to prove the statutory amount. Knight v.
Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983); Wright
v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954).
When the value of goods taken is at issue, "the facts and
circumstances proven [must be] such as to permit an intelligent
and probable estimate of the amount of damages or loss
sustained." Gertler v. Bowling, 202 Va. 213, 215, 116 S.E.2d
268, 270 (1960). Value may be shown from direct or
circumstantial evidence. Veney v. Commonwealth, 212 Va. 805,
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806-07, 188 S.E.2d 80, 82-82 (1972). As the owner of the
motorcycle, Walters was competent to testify as to its value.
Haynes v. Glenn, 197 Va. 746, 750-51, 91 S.E.2d 433, 436 (1956).
"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.'" Dunn v. Commonwealth, 222 Va.
704, 705, 284 S.E.2d 792, 792 (1981) (quoting Gertler, 202 Va. at
215, 116 S.E.2d at 270).
The evidence sufficiently proved the value of the motorcycle
to be $200 or more. "There was sufficient evidence before the
[trier of fact] for it to intelligently and fairly estimate with
reasonable certainty the quantum of damages at the time of the
loss" and to conclude that the motorcycle was worth $200 or more.
The testimony of the owner, Walters, established that she was
knowledgeable about the value of the motorcycle which she
purchased as a specially customized, limited production model
with a present value of at least $3,500. The trial court was
entitled to reject as incredible appellant's testimony of the
value he assigned to the work he was to perform in exchange for
the bike.
SUFFICIENCY
The trial court, having the opportunity to see and hear the
witnesses testify, was entitled to credit the Commonwealth's
witness and to disbelieve appellant. See Schneider v.
Commonwealth, 230 Va. 379, 382, 383, 337 S.E.2d 735, 736-37
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(1985). "The weight which should be given to evidence and
whether the testimony of a witness is credible are questions
which the fact finder must decide." Bridgeman v. Commonwealth, 3
Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
"To prove that a defendant is guilty of larceny, the
Commonwealth must present evidence that the defendant took the
property with the intention to deprive the owner permanently of
his possession of the goods." Welch v. Commonwealth, 15 Va. App.
518, 524, 425 S.E.2d 101, 105 (1992). "Intent may, and most
often must, be proven by circumstantial evidence and the
reasonable inferences to be drawn from proven facts are within
the province of the trier of fact." Fleming v. Commonwealth, 13
Va. App. 349, 353, 412 S.E.2d 180, 183 (1991).
The trial court rejected as incredible appellant's claim
that he had a right to take the motorcycle and properly inferred
that appellant's intent was to permanently deprive the victim of
her motorcycle from the wrongful taking of the property. See
Bryant v. Commonwealth, 248 Va. 179, 445 S.E.2d 667 (1994);
Saunders v. Commonwealth, 18 Va. App. 825, 447 S.E.2d 526 (1994).
The victim testified that she requested the return of her
motorcycle and appellant refused. Appellant's testimony
established that he had converted the motorcycle to his own use
by giving it to his cousin. From appellant's refusal to return
the motorcycle and his subsequent conversion of the same, the
court was entitled to conclude that he intended to permanently
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deprive the victim of her property.
For the foregoing reasons, we affirm the conviction.
Affirmed.
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