Marlo Jermaine Owen v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
MARLO JERMAINE OWEN
v. Record No. 1495-95-2 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA MAY 28, 1996
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Nora J. Miller, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Marlo Jermaine Owen (appellant) was convicted in a bench
trial of grand larceny. On appeal, he argues that the trial
court erred in finding the evidence sufficient to prove that the
value of the stolen items was more than $200. We agree and
reverse the conviction.
On May 19, 1994, appellant and an accomplice broke into the
Halifax County Wastewater Treatment Plant. They took a power saw
and Craftsman tools that were marked as the property of the Town
of Halifax. Later that evening, appellant asked his uncle,
Howard Owen (Owen), if he wanted to buy some tools. Owen said he
had only forty dollars, and appellant sold the tools to Owen for
that amount.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The next day, Jane Watts (Watts), the chief operator of the
treatment plant, discovered that the tools were missing. As
chief operator of the plant, Watts was responsible for purchasing
any necessary tools. She prepared a list of the missing tools
and, using a Sears catalog, estimated the replacement cost of the
tools to be $540. The police found the missing tools at Owen's
home.
At trial, Watts testified that the tools were purchased in
1986 or 1987; that she did not purchase the tools or know the
purchase price; that they were Craftsman tools from Sears with a
lifetime guaranty; that they were in "excellent working order";
and that they were worth more than $200. At the conclusion of
the Commonwealth's evidence, appellant moved to strike, arguing
that the Commonwealth failed to show that the current value of
the tools was more than $200. The trial judge denied appellant's
motion and stated as follows:
I think that the Commonwealth has made
out a prima facie case as to the value of the
goods taken. Even if you depreciate those
goods by more than fifty percent, you still
would be two hundred dollars or more. And as
the Commonwealth has pointed out, these types
of goods are not easily depreciated. They
have lifetime guarantees by the Craftsman
people and they probably do not lose their
value very fast.
This case is controlled by Walls v. Commonwealth, 248 Va.
480, 450 S.E.2d 363 (1994). In Walls, the Supreme Court of
Virginia recognized that "'[p]roof that an article has some value
is sufficient to warrant a conviction of petit larceny, but where
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the value of the thing stolen determines the grade of the
offense, the value must be alleged and the Commonwealth must
prove the value to be the statutory amount.'" 248 Va. at 481,
450 S.E.2d at 364 (quoting Wright v. Commonwealth, 196 Va. 132,
139, 82 S.E.2d 603, 607 (1954)). "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 v. Bowling, 202 Va. 213,
215, 116 S.E.2d 268, 270 (1960)).
In Walls, the Supreme Court held that "the general rule is
that opinion testimony of a nonexpert, who is not the owner of
the personal property in question, is admissible upon the subject
of property value, provided the witness possesses sufficient
knowledge of the value of the property or has had ample
opportunity for forming a correct opinion as to value." 248 Va.
at 483, 450 S.E.2d at 365 (emphasis added). The nonexpert
witness in Walls "described the items, stated their age, and said
they were in 'good working order.' But he did not testify about
the original cost or 'the effect of age and wear and tear' on the
value of the stolen equipment." Id. (quoting Dunn, 222 Va. at
705, 284 S.E.2d at 792). The Supreme Court determined that the
witness "demonstrated insufficient knowledge of the value of the
stolen items" and reversed the conviction. Walls, 248 Va. at
483, 450 S.E.2d at 365.
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Like the witness in Walls, Watts, who was not the owner of
the tools, did not testify about the original purchase price of
the tools or the effect of age and wear and tear on the value of
the tools. She testified only that the tools were purchased in
1986 or 1987 by someone other than herself; that she did not know
the purchase price; that the tools were Craftsman tools from
Sears with a lifetime guaranty; and that they were in excellent
working order. Although she estimated the replacement cost of
the tools to be $540 and thus more than $200, this estimate did
not adequately establish the current value of the stolen tools,
reflecting the effects of wear and tear. We hold that the trial
court erred in finding the evidence sufficient to prove that the
value of the tools was more than $200.
Accordingly, the decision of the Supreme Court in Walls
dictates reversal. The case is remanded to the circuit court for
sentencing in accordance with a verdict of petit larceny.
Reversed and remanded.
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