Michael Blake Vaughan v. Commonwealth of Virginia ( 2017 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and Chafin
UNPUBLISHED
Argued at Lexington, Virginia
MICHAEL BLAKE VAUGHAN
MEMORANDUM OPINION* BY
v. Record No. 0393-16-3 JUDGE TERESA M. CHAFIN
MARCH 14, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Aaron M. Burgin, Assistant Public Defender, for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Following a bench trial, Michael Blake Vaughan (“appellant”) was convicted of felony
shoplifting in violation of Code § 18.2-103. On appeal, appellant challenges the sufficiency of the
evidence supporting his conviction. Specifically, appellant contends that the evidence failed to
“establish that [appellant] fully concealed the merchandise in question.” Appellant contends that he
“merely attempted to unlawfully take possession of the [merchandise].” For the reasons that follow,
we affirm appellant’s conviction.
Background
On appellate review, we consider the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party below, and “accord [it] the benefit of all
inferences fairly deducible from the evidence.” Riner v. Commonwealth, 268 Va. 296, 303, 601
S.E.2d 555, 558 (2004). On October 31, 2015, Derrick Forney, a loss prevention officer at
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Target, witnessed appellant remove the “spider wire” security device from a thirty-two-inch
television. Appellant then returned the television to its shelf and continued shopping.
After purchasing candy and a large gray storage tub, appellant returned to the television.
Appellant unsuccessfully attempted to fit the television inside the storage tub. When it did not
fit, appellant placed the television in the shopping cart and positioned the storage tub on top of
the television, leaving the bottom of the television box visible through the perforations in the
cart. The Commonwealth introduced a video showing appellant performing this act and
demonstrating that the tub did not fully conceal the television.
Appellant went toward the cash registers and walked past all points of sale with the
television in his cart. As Forney approached appellant, he could not see the television. Only a
small portion of the white television box was visible under the tub. When Forney asked about
the television, appellant said that he intended to purchase it. Forney then asked appellant to
accompany him to the loss prevention office. Appellant ran out of the store, leaving the
merchandise behind.1
At the conclusion of the Commonwealth’s case, appellant made a motion to strike based
on the lack of concealment of the television. Appellant argued that the merchandise at issue
must be fully concealed in order to support a shoplifting conviction pursuant to Code § 18.2-103.
Appellant further argued that attempted grand larceny had been proven but not concealment or
felony shoplifting. The Commonwealth responded that there was no requirement that an item be
fully concealed. The trial court denied appellant’s motion.
Appellant did not put on any evidence and renewed his motion to strike. The trial court
again denied the motion, and explained that:
1
After appellant fled the store, Forney created a “training receipt” for the television that
reflected a sales price of $239.99. The receipt was admitted into evidence at trial. The value of
the television is not at issue on appeal.
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[T]here’s no question [appellant] concealed merchandise. . . .
[A]nd concealment just provides a prima facie [case for intent] . . .
it’s not the end of the case. The [c]ourt still has to look at all the
other facts and circumstances, and here, [appellant] also passed all
points of sale. . . . [T]he actions and the movements that can be
seen on the video . . . [are] pretty strong evidence of what
[appellant’s] intent was and then lastly, we have flight. We have
[appellant] running from the store. Now, flight . . . together with
all the other evidence, shows exactly what [appellant’s] intent was
. . . to steal a television . . . he [had] larcenous intent, and that’s
what the [c]ourt finds.
This appeal followed.
Analysis
On appeal, appellant first argues that Code § 18.2-103 requires “full concealment” of the
merchandise. Second, appellant contends that the evidence failed to prove that the television was
“fully concealed” from view or that he took possession of the television adverse to the owner.
For the reasons that follow, we affirm appellant’s conviction.
A. Intent Element of Code § 18.2-103
Appellant contends that the evidence in this case was insufficient to convict him of felony
shoplifting pursuant to Code § 18.2-103 because he did not “fully conceal” the television from
view. Appellant further argues that the trial court erred when it found him guilty of felony
shoplifting rather than attempted grand larceny pursuant to Code § 18.2-26.
“When construing a statute, our primary objective is ‘to ascertain and give effect to
legislative intent,’ as expressed by the language used in the statute.” Cuccinelli v. Rector &
Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting
Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)). “To best ascertain
that intent, ‘[w]hen the language of a statute is unambiguous, we are bound by the plain meaning
of that language.’” Blake v. Commonwealth, 288 Va. 375, 381, 764 S.E.2d 105, 107 (2014)
(quoting Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011)).
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“Although any ambiguity or reasonable doubt as to the proper construction of a penal statute
must be resolved in favor of the accused, a defendant is not entitled to benefit from an
‘unreasonably restrictive interpretation of the statute.’” Hulcher v. Commonwealth, 39 Va. App.
601, 606, 575 S.E.2d 579, 581 (2003) (citations omitted). “Questions of statutory interpretation
are reviewed de novo.” Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71, 74 (2014)
(citing Belew v. Commonwealth, 284 Va. 173, 177, 726 S.E.2d 257, 259 (2012)).
“Code § 18.2-103 is a larceny statute and provides that the behavior prescribed therein
constitutes grand larceny or petit larceny depending on the value of the item or items involved in
the offense.” Hulcher, 39 Va. App. at 609, 575 S.E.2d at 582. Code § 18.2-103 provides in
pertinent part:
Whoever, without authority, with the intention of converting goods
or merchandise to his own or another’s use without having paid the
full purchase price thereof, or of defrauding the owner of the value
of the goods or merchandise, (i) willfully conceals or takes
possession of the goods or merchandise of any store or other
mercantile establishment . . . when the value of the goods or
merchandise involved in the offense is $200 or more, shall be
guilty of grand larceny.
In Code § 18.2-103, the legislature provides a vehicle by which larcenous intent may be
easily proven “in cases involving the theft of articles from merchants, who necessarily allow the
general public largely unrestricted access to both the merchandise they offer for sale and to other
goods also on their premises.” Hulcher, 39 Va. App. at 609, 575 S.E.2d at 582. The statute goes
on to state that “[t]he willful concealment of goods or merchandise of any store . . . while still on
the premises thereof, shall be prima facie evidence of an intent to convert and defraud the owner
thereof out of the value of the goods or merchandise.” Code § 18.2-103.
Alternatively, the same criminal intent may be established outside of the statutory
framework provided by Code § 18.2-103. Generally, larcenous intent “may, and often must, be
inferred from that person’s conduct and statements.” McEachern v. Commonwealth, 52
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Va. App. 679, 684, 667 S.E.2d 343, 345 (2008) (citation omitted). “To be sure, ‘there is not one
case in a hundred where the felonious intent in the original taking can be proved by direct
evidence. From the nature of the case, intent, generally, must be inferred from circumstances.’”
Id. (emphasis added) (quoting Skeeter v. Commonwealth, 217 Va. 722, 726, 232 S.E.2d 756, 759
(1977)).
Notably, Code § 18.2-103 does not prohibit simply the concealment of merchandise.
Instead, it prohibits a willful concealment.” Johnson v. Commonwealth, 35 Va. App. 134, 140,
543 S.E.2d 605, 608 (2001) (emphasis added).
“The word [willful] often denotes an act which is intentional, or
knowing, or voluntary, as distinguished from accidental. But when
used in a criminal statute it generally means an act done with a bad
purpose; without justifiable excuse; stubbornly, obstinately,
perversely. The word is also employed to characterize a thing
done without ground for believing it is lawful.” Snead [v.
Commonwealth], 11 Va. App. [643,] 646-47, 400 S.E.2d [806,]
807 [(1991)] (citation omitted).
Id. “In a criminal statute, ‘willfully’ ordinarily means designedly, intentionally or perversely.
‘[T]he correct application [of willfully] in a particular case will generally depend upon the
character of the act involved and the attending circumstances.’” Snead, 11 Va. App. at 647, 400
S.E.2d at 807 (quoting Lambert v. Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745, 746
(1988)); see Ronald J. Bacigal, Criminal Offenses and Defenses 438 (2016); see also Johnson, 35
Va. App. at 140, 543 S.E.2d at 608.
By requiring “willful concealment,” Code § 18.2-103 requires the concealment at issue to
be intentional. The plain language of Code § 18.2-103, however, does not require full
concealment as appellant suggests. Concealment is defined as “[t]he act of removing from sight
or notice; hiding.” Concealment, Black’s Law Dictionary (10th ed. 2014); see also
Commonwealth v. Balboni, 532 N.E.2d 706, 707 (Mass. App. Ct. 1989) (“The word [conceal]
implies the covering of an object to keep it from sight or the withdrawal of the object from
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observation to prevent its discovery.” (citing Black’s Law Dictionary 261 (5th ed. 1979)). The
definition is not limited to full and total concealment, and the plain language of the statute does
not place such a limitation on the term. Johnson, 35 Va. App. at 140, 543 S.E.2d at 608.
While the willful total concealment of merchandise is prima facie evidence of an “intent
to convert and defraud” the owner of the value of the merchandise, under certain circumstances,
partial concealment can permit a similar inference as it can also obscure from notice the
merchandise in question. The partial concealment that occurred in the present case in
conjunction with the totality of appellant’s conduct supports such an inference.2
B. Sufficiency of the Evidence
Appellant contends that the evidence was insufficient to support his felony shoplifting
conviction. When considering the sufficiency of the evidence on appeal, “a reviewing court does
not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387
(2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in
the light most favorable to the Commonwealth, as we must since it was the prevailing party in
the trial court,” Riner, 268 Va. at 330, 601 S.E.2d at 574, “[w]e must instead ask whether ‘any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt,’” Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41
Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)).
2
We note that as an alternative to proving “willful concealment,” Code § 18.2-103
provides that the Commonwealth may instead prove that the offender took possession of a store
owner’s merchandise with the intention of permanently depriving the owner of his property. The
Commonwealth nor the trial court addressed that basis for conviction at trial. Therefore, we do
not consider it on appeal. See Whitehead v. Commonwealth, 278 Va. 105, 114-15, 677 S.E.2d
265, 270 (2009) (right result for the wrong reason doctrine does not apply where trial court does
not make factual findings as to an alternative basis for conviction).
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To convict an accused for shoplifting in violation of Code § 18.2-103, “[t]he
Commonwealth must prove (1) a willful concealment of merchandise, done (2) with the intent to
convert the merchandise or to defraud the storekeeper.” Snead, 11 Va. App. at 646, 400 S.E.2d
at 807; see Code § 18.2-103.
Here, the store surveillance video showed appellant removing the security device from a
thirty-two-inch television then returning the television to the shelf. Appellant then purchased a
large storage tub and returned to the television. He placed the television in the shopping cart and
intentionally positioned the storage tub on top of the television in an effort to conceal it from
view. Only a small portion of the white television box was visible under the tub. Appellant then
proceeded past all points of sale. When approached by the loss prevention officer, appellant first
responded that he intended to purchase the television. However, when the officer asked
appellant to accompany him to the loss prevention office, appellant ran out of the store, leaving
the television and other merchandise behind.
“[Appellant’s] actions in this regard amounted to willfully placing the [television] ‘out of
sight’ and concealing the [television] in the manner contemplated by the statute.” Johnson, 35
Va. App. at 141, 543 S.E.2d at 608. The surrounding circumstances further established his intent
to defraud Target of the value of the television. See Clagett v. Commonwealth, 252 Va. 79, 93,
472 S.E.2d 263, 271 (1996) (“Flight following the commission of a crime is evidence of guilt
. . . .”). Considering the totality of appellant’s actions, we conclude that the trial court could
reasonably find, beyond a reasonable doubt, that appellant willfully concealed the television with
the intent to defraud Target of its value.
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Conclusion
For the reasons stated, we conclude that the trial court did not err in finding the evidence
sufficient to support appellant’s conviction pursuant to Code § 18.2-103. Accordingly, we affirm
the trial court’s decision.
Affirmed.
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