Antonio Freeman v. Commonwealth of Virginia ( 2014 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Petty and Senior Judge Bumgardner
UNPUBLISHED
Argued at Chesapeake, Virginia
ANTONIO FREEMAN
MEMORANDUM OPINION BY
v. Record No. 1544-13-1 JUDGE WILLIAM G. PETTY
JULY 22, 2014
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Carl E. Eason, Jr., Judge
Jean Veness, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Antonio Freeman was convicted of grand larceny in violation of Code § 18.2-95. On
appeal, Freeman argues that the evidence was insufficient to support his conviction because it
failed to prove he stole the property of another and that the value of the stolen property was over
two-hundred dollars. For the reasons stated below, we affirm Freeman’s conviction.
I.
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
On August 20, 2012, Anthony Kelly, a Walmart loss prevention associate, noticed an
unattended shopping cart filled with merchandise in the men’s department. Kelly inspected the

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
shopping cart and found that it contained DVDs that were placed between three layers of
clothing. There were approximately fourteen to twenty DVDs of the movie “Hunger Games,”
each of which sold for $19.96 each.
Kelly watched the shopping cart because he suspected that someone was going to attempt
to steal the DVDs. Freeman approached the cart, produced a plastic Walmart bag, removed the
DVDs from the cart, and placed them into the bag. Freeman walked to the store exit with the
bag of DVDs. Kelly left the store through a different exit, losing direct eye sight of Freeman for
approximately twenty seconds. Kelly then observed Freeman exit the store with the bag of
DVDs, enter a car in the parking lot, and leave. Kelly re-entered the store, checked the shopping
cart, and discovered that all the DVDs had been removed. Kelly then went to the electronics
department where the DVDs were sold and conducted an “on-hand count.” From this he was
able to determine “without a shadow of doubt” that 14 DVDs were missing. Freeman was
subsequently convicted of grand larceny in violation of Code § 18.2-95. Freeman appeals his
conviction to this Court.
II.
Freeman challenges the sufficiency of the evidence; therefore, we must “‘examine the
evidence that supports the conviction and allow the conviction to stand unless it is plainly wrong
or without evidence to support it.’” Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733,
735 (2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40
(2008)). We review the evidence in the light most favorable to the Commonwealth, as the
prevailing party below, and determine whether “‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). “Furthermore, we ‘accord the Commonwealth the benefit of all
inferences fairly deducible from the evidence.’” Brooks v. Commonwealth, 282 Va. 90, 95, 712
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S.E.2d 464, 466 (2011) (quoting Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910,
923 (2008)).
Code § 18.2-95 provides that “[a]ny person who . . . commits simple larceny not from the
person of another of goods and chattels of the value of $200 or more . . . shall be guilty of grand
larceny . . . .” See Britt v. Commonwealth, 276 Va. 569, 574, 667 S.E.2d 763, 765 (2008).
“‘Proof that an article has some value is sufficient to warrant a conviction of petit larceny, but
where 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.’” Knight v.
Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983) (quoting Wright v. Commonwealth,
196 Va. 132, 139, 82 S.E.2d 603, 607 (1954)).
Freeman argues the evidence was insufficient to prove he stole the merchandise or that its
value exceeded two-hundred dollars. However, ample circumstantial evidence proves that
Freeman stole the merchandise and its value exceeded two-hundred dollars.
“Circumstantial evidence . . . is evidence of facts or circumstances not in issue from
which facts or circumstances in issue may be inferred.” Byers v. Commonwealth, 23 Va. App.
146, 151, 474 S.E.2d 852, 854 (1996) (citation omitted). “‘Circumstantial evidence [presented
during the course of the trial] is as competent and is entitled to as much weight as direct
evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except
that of guilt.’” Salcedo v. Commonwealth, 58 Va. App. 525, 535, 712 S.E.2d 8, 12 (2011)
(quoting Holloway v. Commonwealth, 57 Va. App. 658, 665, 705 S.E.2d 510, 513 (2011) (en
banc)). Moreover, “[c]ircumstantial evidence is as acceptable to prove guilt as direct evidence.”
Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980).
At trial, Kelly estimated that twenty DVDs were in the shopping cart at the time that he
checked it; however, he further testified that a count of the number of DVDs that were missing
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was conducted and that he “knew without a shadow of doubt” the shopping cart contained at
least fourteen DVDs. He further explained that the DVDs were Blu-ray versions of the “Hunger
Games” movie and that each one sold for $19.96. Thus, the evidence was sufficient to establish
that fourteen DVDs valued at $19.96 were taken from the shopping cart. This meets the
two-hundred dollar threshold for grand larceny. Therefore, we reject Freeman’s argument that
the value of the merchandise was not proven.
Freeman further argues that the evidence fails to prove that he stole the DVDs because
Kelly lost sight of him briefly during the time the two men left the store through different exits.
Kelly testified that he lost sight of Freeman for “twenty seconds” when he exited the store
through the garden center. Freeman argues that during this twenty-second period when he was
not seen he “may have gone through a check out and paid for the items that Kelly claims [he]
had.” However, Kelly testified that Freeman never went through any points of sale and never
purchased anything on that date. Furthermore, based on the short period of time that Freeman
was out of Kelly’s sight, it is quite reasonable to conclude, as the trial court did, that Freeman did
not have time to pay for the DVDs before he left the store. Finally, the fact that the DVDs had
been concealed under clothing in the shopping cart and that Freeman removed them and put
them in a Walmart bag that he had apparently brought with him was evidence that he intended to
steal the merchandise. Therefore, we reject Freeman’s argument that the evidence was
insufficient to prove that he stole the DVDs.
III.
For the foregoing reasons, we affirm Freeman’s conviction.
Affirmed.
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