Gene Raymond Locke v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, O’Brien and Raphael
UNPUBLISHED
Argued at Lexington, Virginia
GENE RAYMOND LOCKE
MEMORANDUM OPINION * BY
v. Record No. 0540-21-3 JUDGE ROBERT J. HUMPHREYS
APRIL 5, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
John T. Cook, Judge
Sidney H. Kirstein for appellant.
Rebecca M. Garcia, Assistant Attorney General (Mark R. Herring, 1
Attorney General, on brief), for appellee.
Gene Raymond Locke was indicted and subsequently convicted, following a bench trial,
on two counts of shoplifting by altering price tags, third offense, in violation of Code
§§ 18.2-103 and 18.2-104. (Code § 18.2-104 was repealed on July 1, 2021). Locke appeals his
convictions, asserting that the evidence was insufficient to support both convictions. We affirm
in part and reverse in part.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.
Commonwealth, 295 Va. 469, 472-73 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381
(2016)). In doing so, we discard any of Locke’s conflicting evidence, and regard as true all
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1 Jason S. Miyares succeeded Mark R. Herring as Attorney General on January 15, 2022.
credible evidence favorable to the Commonwealth and all inferences that may reasonably be
drawn from that evidence. Id. at 473. At a bench trial, the following evidence was presented.
On April 23, 2020, Walmart asset protection employee Kyle Heuling noticed Locke and a
woman “in the store in the clearance aisle taking off the clearance stickers.” Heuling did not see
the couple place the clearance stickers on other items, but he “believe[d] they were going to put
[the stickers] on other items.” As a result of his suspicions, Heuling followed Locke and his
female companion around Walmart and ultimately to the self-checkout area. Heuling watched
the couple begin to ring up items but was called away to “apprehend someone else that was
stealing right next to [him],” and did not witness the rest of the transaction.
Later, Heuling decided to review the couple’s transaction via security video footage from
Walmart’s in-store cameras installed at self-checkout kiosks. Using the video footage and the
transaction receipt, Heuling determined that Locke left the store on April 23 without paying for
some items and without paying full price for other items. At the bench trial, the Commonwealth
entered the relevant security footage into evidence but did not enter the receipt. Heuling testified
that the difference between the value of the merchandise and the amount paid was $141.19. 2
Using the credit card information from Locke’s April 23 transaction, Heuling searched
Walmart’s records and discovered that Locke, along with the same female companion, had
purchased items with the same card on April 14, 2020. Heuling reviewed the security footage
from April 14 as well as Locke’s receipt from that transaction, and Heuling testified that the
transaction involved “multiple clearance stickers.” Again, the Commonwealth entered the video
into evidence but did not introduce the relevant receipt.
Security video footage from a self-checkout machine shows that on April 14, Locke
placed a product called “JB Weld” and two sodas next to the checkout machine. His female
2
The record does not explain or illustrate how Heuling calculated a loss of $141.19.
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companion is pictured in the video holding a steering wheel cover and shorts, both of which had
visible yellow clearance stickers. The woman scanned the shorts; Heuling testified that the
shorts should have rung up for $14.50 but instead rang up as automobile markers for $2.50. The
woman rang up the steering wheel cover but later voided it and did not remove it from the store.
The couple scanned the JB Weld, which Heuling testified rang up for $0.50 but should have rung
up for $5.57.
Finally, the video also shows that the couple placed two bottles of soda next to the
register. It is unclear from the video whether the woman scanned both or only one of the soda
bottles before placing both bottles in a bag. The women then used a card to pay for and complete
the transaction. Heuling testified that the difference between the amount the couple paid and the
amount that they should have paid on April 14 was $20.27. 3 A second video clip introduced by
the Commonwealth showed Locke leaving the store with the above-listed items.
Heuling testified that he did not see Locke or his companion switch any stickers on April
14, and neither party presented additional witnesses after Heuling testified. The following quote
constituted the entirety of Locke’s closing argument:
Your Honor, if it please the Court, you’ve seen the evidence and
the question is whether the fella in the video was my client. That’s
the issue and whether you can find that beyond a reasonable doubt.
Judge, I would say on the 14th there were some tags that were
wrong. There’s no evidence of how they became wrong. Perhaps
[you] could infer that they switched them out but you have no
evidence of that but they were wrong according to the testimony of
Mr. Heuling.
Noting that it had “been able to watch the[] videos and listen to . . . the Commonwealth’s witness
who [it] found to be credible,” the circuit court found Locke guilty of both charges. The circuit
court did not separately discuss the April 14 and April 23 events. By final order of May 5, 2021,
3 The record does not explain or illustrate how Heuling calculated a loss of $20.27.
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the circuit court sentenced Locke to three years’ incarceration with two years and five months
suspended for the April 14 offense, and three years’ incarceration with two years and six months
suspended for the April 23 offense, for a total active sentence of thirteen months. Locke timely
appealed.
ANALYSIS
I. APPEAL FROM APRIL 23 CONVICTION WAIVED
Locke challenges the sufficiency of the evidence underlying both his convictions. The
Commonwealth contends that Locke procedurally defaulted his challenge to the conviction for
the April 23 offense by not challenging it in the circuit court.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “Rule 5A:18 requires a
litigant to make timely and specific objections, so that the trial court has ‘an opportunity to rule
intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’” Brown
v. Commonwealth, 279 Va. 210, 217 (2010) (quoting West v. Commonwealth, 43 Va. App. 327,
337 (2004)). A defendant may preserve a sufficiency-of-the-evidence challenge through his
closing argument during a bench trial. See Thorne v. Commonwealth, 66 Va. App. 248, 250 n.1
(2016); see also Commonwealth v. Herring, 288 Va. 59, 67-68 (2014).
“In order to preserve an issue for appeal, ‘an objection must be timely made and the
grounds stated with specificity.’” McDuffie v. Commonwealth, 49 Va. App. 170, 177 (2006)
(quoting Marlowe v. Commonwealth, 2 Va. App. 619, 621 (1986)). “Not just any objection will
do. It must be both specific and timely—so that the trial judge would know the particular point
being made in time to do something about it.” Bethea v. Commonwealth, 297 Va. 730, 743
(2019) (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)).
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Locke’s closing argument at trial did not specifically address the April 23 offense.
Locke’s counsel vaguely referenced “the video” without specifying which of the videos he was
referring to and then argued that there was no evidence that Locke switched price tags on April
14. It is hard to construe counsel’s argument as pertaining to anything but the April 14 offense.
Counsel’s argument was thus insufficiently specific to preserve his appellate arguments related
to the April 23 offense. Locke does not invoke the good cause or ends of justice exceptions to
Rule 5A:18, and the Court declines to apply the exceptions sua sponte. See Edwards v.
Commonwealth, 41 Va. App. 752, 761 (2003) (en banc). Locke has therefore waived appellate
review of his conviction for the events of April 23, 2020, and we affirm the circuit court’s
judgment.
II. STANDARD OF REVIEW
The parties disagree as to the standard of review applicable to Locke’s assignment of
error for his conviction regarding the events of April 14, 2020. Ordinarily, “[w]hen reviewing
the sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will not
be disturbed unless it is plainly wrong or without evidence to support it.’” Yoder v.
Commonwealth, 298 Va. 180, 181-82 (2019) (quoting Smith v. Commonwealth, 296 Va. 450, 460
(2018)). “In such cases, ‘[t]he Court does not ask itself whether it believes that the evidence at
the trial established guilt beyond a reasonable doubt.’” Secret v. Commonwealth, 296 Va. 204,
228 (2018) (alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)).
“Rather, the relevant question is, upon review of the evidence in the light most favorable to the
prosecution, whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. (quoting Pijor, 294 Va. at 512). “If there is evidentiary
support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment,
even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’”
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Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67
Va. App. 273, 288 (2017)).
Locke argues that the sole evidence underlying his conviction for the April 14 offense is
the security video and that this Court should therefore review the conviction “de novo . . . with
all facts and circumstances concerning guilt being viewed in the light most favorable to the
Commonwealth so long as the totality of the evidence would establish all the essential elements
of the alleged crime beyond a reasonable doubt to a rational fact finder.” Locke’s reply brief
clarifies that he desires this Court to make de novo findings concerning the content of the April
14 security video.
Locke relies on Watson-Scott v. Commonwealth, 298 Va. 251, 255 (2019), for the
proposition that where “the essential facts are undisputed” and the Court is presented with the
question of how to apply the law to the facts, the Court applies de novo review. In Watson-Scott,
the essential facts were undisputed because it was uncontested that the defendant had fired
multiple shots from a handgun down a city street. Id. As a result, whether and how the
defendant fired the gun—factual determinations—were not at issue; on appeal, the Virginia
Supreme Court was only tasked with determining whether the undisputed facts were sufficient to
meet the legal standard for malice, a pure question of law. 4 See id. at 257-58.
Unlike in Watson-Scott, in this case, the essential facts are not undisputed. The circuit
court in its role as factfinder decided whether the video evidence and Heuling’s testimony proved
that Locke altered the price tags on goods for sale on April 14. On appeal, Locke argues that the
4 In a similar case, Kim v. Commonwealth, 293 Va. 304, 310-11 (2017), the issue on
appeal was whether the road on which the defendant was found was a “public highway” as
defined by Code § 46.2-100. In Kim, just as in Watson-Scott, the essential facts of the case were
not in dispute. See id. at 311-12. Because the essential facts were undisputed, the Virginia
Supreme Court had to decide whether the roadway on which Kim was found met the statutory
definition of “highway,” a pure question of law. See id. As explained above, in the present case,
there were facts in dispute.
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evidence did not prove that he altered the price tags on goods. Whether Locke altered the tags of
certain goods is a question of fact to be determined by the evidence, not a question of law. We
are bound by the circuit court’s factual determinations unless there is insufficient evidence to
support them, or they are plainly wrong. See Jennings v. Commonwealth, 67 Va. App. 620, 625
(2017); Code § 8.01-680.
Locke next asks that we give no deference to the circuit court’s findings of fact and
instead draw our own factual determinations from the video. Such a request is not supported by
precedent. See Commonwealth v. Hilliard, 270 Va. 42, 50-51 (2005) (holding that this Court
erred by making factual findings based on a defendant’s tone, voice inflections, and demeanor in
a video submitted as evidence at trial). We are bound by our earlier precedent establishing that
in a bench trial, the circuit court judge’s “major role” is determining the facts of the case. See
Purvy v. Commonwealth, 59 Va. App. 260, 272 (2011). Further, this Court regards the circuit
court’s determination of the facts of the case “with the highest degree of appellate deference.”
See id. (quoting Thomas v. Commonwealth, 48 Va. App. 605, 608 (2006)). Accordingly, we will
not disturb the circuit court’s ruling unless its judgment is plainly wrong or without evidence to
support it. See Jennings, 67 Va. App. at 625.
III. WHETHER THE EVIDENCE WAS SUFFICIENT
Turning now to the merits, 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, or (ii) alters the price tag or other price
marking on such goods or merchandise, or transfers the goods
from one container to another, or (iii) counsels, assists, aids or
abets another in the performance of any of the above acts . . . shall
be guilty of petit larceny.
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The question we must answer is whether a reasonable factfinder could find that Locke is
guilty of altering price tags beyond a reasonable doubt. We have held that the evidence
supporting a criminal conviction must exclude every reasonable hypothesis of innocence that
flows from the evidence. See Jennings, 67 Va. App. at 626 (quoting Thorne, 66 Va. App. at
254). If a reasonable factfinder could have rejected Locke’s defense theories and found him
guilty of altering price tags beyond a reasonable doubt, we must affirm. See id.
Here, the evidence related to the April 14 transaction, taken in the light most favorable to
the Commonwealth, establishes only that some items had somehow been improperly tagged with
a clearance sticker. No evidence was introduced in the circuit court regarding how the items in
the April 14 transaction came to be improperly priced. Significantly, no one saw Locke or his
female companion removing clearance stickers or placing clearance stickers on full-price items
on April 14. We hold that no reasonable factfinder could have found beyond a reasonable doubt
that Locke altered the price tags on the scant amount of evidence introduced by the
Commonwealth. The Commonwealth, after all, bears the burden of proving a defendant’s guilt
beyond a reasonable doubt. See Williams v. Commonwealth, 71 Va. App. 462, 485 (2020)
(quoting Commonwealth v. Hudson, 265 Va. 505, 513 (2003)). The Commonwealth failed to
disprove any credible hypotheses of innocence flowing from the evidence. See Hamilton v.
Commonwealth, 16 Va. App. 751, 755 (1993) (“The Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence, not those that spring from the
imagination of the defendant.”). “When examining an alternate hypothesis of innocence, the
question is not whether ‘some evidence’ supports the hypothesis, but whether a rational
factfinder could have found that the incriminating evidence renders the hypothesis of innocence
unreasonable.” Williams, 71 Va. App. at 485 (quoting Vasquez v. Commonwealth, 291 Va. 232,
250 (2016)). For example, the Commonwealth did not address whether a store employee may
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have erroneously placed the clearance stickers on full-price items. We view the evidence and all
reasonable inferences to be drawn from it in the light most favorable to the Commonwealth, but
here, no evidence was introduced related to how the incorrect stickers were placed. See Hunley
v. Commonwealth, 30 Va. App. 556, 563 (1999). Even in the light most favorable to the
Commonwealth, the only inference that can be reached from the record before us is that at some
point, incorrect clearance stickers were placed on a few items that Locke and his companion
purchased on April 14, 2020, which is insufficient to convict Locke beyond a reasonable doubt.
The Commonwealth argues that even if the evidence was insufficient to support a
conviction under Code § 18.2-103(ii) for altering price tags, Locke should still be convicted
under Code § 18.2-103(i) for concealing or taking possession of merchandise because the
security video appeared to show that Locke and his companion also removed a bottle of soda
from the store without scanning it on the register. See Code § 18.2-103(i) (prohibiting willfully
concealing or taking possession of goods or merchandise with the intent to convert them to one’s
own or another’s use without having paid the full purchase price).5 We cannot agree. To the
point that the Commonwealth urges us to decide this case under the “right result for the wrong
reason” doctrine, we decline to do so because “cases are only proper for application of the right
result for the wrong reason doctrine when the evidence in the record supports the new argument
on appeal, and the development of additional facts is not necessary.” Perry v. Commonwealth,
280 Va. 572, 579 (2010). At trial, the Commonwealth never raised the issue of whether Locke
stole the bottle of soda nor was there any testimony about whether Locke properly scanned the
bottle of soda. As noted, no receipts or other documentation memorializing Locke’s purchases
were introduced. We review video evidence only for legal sufficiency and do not make de novo
5 Locke was indicted under Code § 18.2-103 with no further specificity related to the
statute’s subsections.
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factual conclusions from such video evidence, so it is beyond our purview to determine whether
the video showed a bottle of soda being taken. See Hilliard, 270 Va. at 49-51. Because
determining whether Locke concealed or took possession of a bottle of soda with the intent to
defraud the store of its value would require the development of new facts, we do not address the
issue on appeal.
CONCLUSION
Locke waived his assignment of error on appeal for his conviction for the events of April 23;
however, the circuit court’s judgment related to the April 14 conviction was plainly wrong and
without evidence to support it. Accordingly, we affirm Locke’s conviction for April 23 and reverse
his conviction for April 14.
Affirmed in part and reversed in part.
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