Justin Lamont Wilson v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
JUSTIN LAMONT WINSTON
v. Record No. 0431-95-2 MEMORANDUM OPINION *
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA APRIL 9, 1996
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Keith N. Hurley (Cawthorn, Picard & Rowe, on
brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In this appeal from his bench trial conviction by the
Circuit Court of Chesterfield County (trial court) of grand
larceny in violation of Code § 18.2-95, Justin Lamont Williams
(appellant) contends that the evidence was insufficient to show
that he was guilty of grand larceny.
Upon familiar principles, we state the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
May 6, 1994, James Yearout (Yearout), an off-duty employee of
Tire America (the store), while sitting in his car waiting for it
to be serviced, saw appellant drop a white "tire bag" into a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
dumpster that was located within twelve to thirteen feet from the
rear of the store. This was the dumpster nearest the loading
dock. To Yearout, the white bag appeared to have an automobile
tire in it.
If a customer of the store desires to take an old tire with
him or her after purchasing new ones, the old tire is placed in a
white bag for the customer's convenience. If the customer does
not want the old tire, the store has a trailer parked near the
rear of the building in which old tires are placed for subsequent
disposal. Old tires are never discarded in the dumpsters and are
not put in white bags when placed inside the trailer.
Yearout told Al Collins (Collins), the store's sales
manager, what he had observed, and Collins "went to the dumpster
to see what was in there." He saw two white bags. One was
sufficiently open to enable him to see that "it had a new tire in
it." Collins reported what he had seen "to the front office" and
then went to lunch. Thereafter, Tom Mathews, who performed the
store's security service, went to the dumpster and recovered two
tires, one from each white bag. Collins later identified them as
two Michelin tires with the same tire tread as on the one he had
seen in the dumpster. Collins stated that on May 6, 1994, the
sale price of these type tires was from $140 to $499 each.
When Mathews attempted to have a discussion with appellant
concerning the tires, appellant denied any knowledge "about the
tires." When Mathews further asked appellant to "talk about it,"
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appellant left the store, without responding further, and never
again returned.
The above information was reported to the Chesterfield
County Police Department. Officer Stein (Stein) responded. In
the course of his investigation Stein sighted appellant about an
hour later at the shopping mall where the store was located and
engaged him in conversation. At first, appellant declined to
give Stein any identification but subsequently gave him his
driver's license. Stein asked appellant if he had stolen any
tires from the store. When that question was asked, without
giving any response, appellant "ran to the front of his car,
jumped in and sped off through the parking lot, leaving [Stein]
standing there with his driver's license." About thirty-five
minutes later, when appellant returned to the mall, Stein "placed
him under arrest for the theft."
Appellant's motion to strike was overruled. Thereafter,
appellant rested without presenting any evidence.
Appellant primarily relies upon Maughs v. City of
Charlottesville, 181 Va. 117, 23 S.E.2d 784 (1943). We do not
agree that Maughs controls our decision here. In Maughs, the
prosecution failed to prove that the railroad ties found in the
defendant's possession were stolen. See Lew v. Commonwealth, 20
Va. App. 353, 457 S.E.2d 392 (1995). In the case before us, it
is clear that the tires placed in the dumpster had been placed
there with the intent to deprive the owner thereof permanently.
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Declared a crime by Code § 18.2-95, larceny is also a common
law crime defined as the wrongful or fraudulent taking of
personal goods of some intrinsic value, belonging to another,
without his assent, and with the intention to deprive the owner
thereof permanently. Dunlavey v. Commonwealth, 184 Va. 521, 524,
35 S.E.2d 763, 764 (1945). The animus furandi must accompany the
taking, but the wrongful taking of property in itself imports the
animus furandi. Id.
To constitute the crime of larceny, there must have been a
felonious taking of property from the possession of the owner,
and the thief must, for an instant at least, have had complete
and absolute possession of the stolen property, and during such
possession and control he must have feloniously removed the same
from the place it occupied just before he grasped, seized or laid
hold of the same. See Jones v. Commonwealth, 3 Va. App. 295,
301, 349 S.E.2d 414, 418 (1986), and authorities there cited.
We cannot say that the judgment of the trial court was
plainly wrong or without evidence to support it. The evidence in
this record is sufficient to support a finding that appellant
wrongfully took personal property belonging to the store, valued
at $200 or more, without the owner's consent and with the intent
to convert it to his own use and to deprive the owner thereof
permanently. See Reese v. Commonwealth, 219 Va. 671, 250 S.E.2d
345 (1979).
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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