Vernon Tyrone Curtis v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia
VERNON TYRONE CURTIS
MEMORANDUM OPINION * BY
v. Record No. 3225-01-2 JUDGE LARRY G. ELDER
JULY 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
(Keith B. Marcus; Bremner, Janus, Cook &
Marcus, on brief), for appellant. Appellant
submitting on brief.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Vernon T. Curtis (appellant) appeals from his bench trial
conviction for petit larceny, his third or subsequent such
offense, in violation of Code §§ 18.2-96 and 18.2-104. On
appeal, he contends the evidence was insufficient to prove the
cartons of cigarettes he was convicted for stealing were the
property of another and were stolen. We hold the circumstantial
evidence was sufficient to prove the cigarette cartons appellant
carried beneath his jacket and discarded as he fled through the
parking lot of a retail establishment were stolen from that
establishment, and we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On appeal, we examine the evidence in the light most
favorable to the Commonwealth, granting to the evidence all
reasonable inferences fairly deducible therefrom. Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
"Circumstantial evidence 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." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983). "[T]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
29 (1993). "[E]vidence of flight may be considered as evidence
of guilt along with other pertinent facts and circumstances."
Hope v. Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833
(1990) (en banc). Where "[t]he circumstances . . . all concur
to form an unbroken chain which links the defendant to the crime
beyond a reasonable doubt," the circumstantial evidence is
sufficient to support the conviction. Bishop v. Commonwealth,
227 Va. 164, 169, 313 S.E.2d 390, 393 (1984).
"Larceny requires proof that the property of another has
been stolen--that is, taken unlawfully with the intent to
permanently deprive the owner of the possession thereof." Lew
v. Commonwealth, 20 Va. App. 353, 355, 457 S.E.2d 392, 393
(1995).
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"It is not necessary that the identity of
stolen property should be invariably
established by positive evidence. In many
such cases identification is impracticable,
and yet the circumstances may render it
impossible to doubt the identity of the
property, or to account for the possession
of it by the accused upon any reasonable
hypothesis consistent with his innocence."
Gravely v. Commonwealth, 86 Va. 396, 402, 10 S.E. 431, 433
(1889) (quoting William Wills, The Principles of Circumstantial
Evidence 130 (3d ed. 1862)), quoted with approval in Henderson
v. Commonwealth, 215 Va. 811, 813, 213 S.E.2d 782, 783 (1975).
"[W]here [the possession] is very recent,
and the property consists of articles, the
identity of which is not capable of strict
proof, from the nature of them, the
conclusion may be drawn that the property is
the same, unless the [defendant] can prove
to the contrary." Thus, . . . if a man be
found coming out of another's barn, and upon
his being searched, corn be found upon him,
of the same kind as that in the barn, the
evidence of guilt will be pregnant . . . .
Gravely, 86 Va. at 402, 10 S.E. at 433 (citation omitted).
Here, the only reasonable hypothesis flowing from the
evidence was that the cigarette cartons appellant discarded
while fleeing from police and Sam's Club personnel were cartons
belonging to the store which he had secreted in his jacket while
in the store's cigarette corral only moments earlier. Although
no one saw appellant take the cartons from the shelf, the
evidence established that appellant and his companion were alone
in the cigarette corral while the attending sales clerk assisted
another person and that appellant had ample opportunity to
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secrete the cartons in his jacket at that time. When appellant
departed the corral, Sam's Club Supervisor Sherry Hart observed
through appellant's jacket "rectangular shapes" "down
[appellant's] back" that "looked just like . . . [m]any cartons
of cigarettes." Appellant declined Hart's offer to "ring [him]
up" at the cigarette corral, saying he had "another larger
basket," but then he and his companion departed the store
through the entrance and walked "at a hurried pace" toward the
parking lot without stopping at a larger basket or proceeding to
the cash registers on "the front line."
When Police Officer Matt Desmond approached appellant in
the parking lot and identified himself, appellant "went around
the side of a large SUV," began to pull cigarette cartons out
from under his jacket and shirt, and discarded them on the
ground as he continued to step away from the officer. When
Officer Desmond grabbed appellant's jacket, appellant abandoned
the jacket and fled. Shortly thereafter, appellant told a clerk
at a nearby Lowe's store that the police were after him, and he
offered to buy the clerk's apron to wear as a disguise.
The only reasonable hypothesis flowing from this evidence
is that the cartons of cigarettes appellant concealed beneath
his coat and discarded in the parking lot while fleeing from
police were cartons appellant stole from Sam's Club. Under the
circumstances, the absence of specific evidence that cartons
were missing from Sam's inventory is not dispositive. Further,
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that the evidence did not prove appellant stole the quantity of
cigarettes alleged in the indictment is immaterial. Because the
offense was petit larceny, the Commonwealth was not required to
prove the quantity of cigarettes taken or that the cigarettes
had a "specific" or "minimum" value. See Evans v. Commonwealth,
226 Va. 292, 297, 308 S.E.2d 126, 129 (1983). The fact that
they were offered for sale was sufficient to prove the
cigarettes had "'some value.'" Id. (quoting Wolverton v.
Commonwealth, 75 Va. 909, 913 (1881)).
For these reasons, we hold the evidence was sufficient to
support appellant's conviction, and we affirm.
Affirmed.
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