Russell Street v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia
RUSSELL STREET
MEMORANDUM OPINION * BY
v. Record No. 1532-01-4 JUDGE RUDOLPH BUMGARDNER, III
JUNE 18, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Robert W. Gookin for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Russell Street of felonious unauthorized
use of a motor vehicle and robbery. On appeal, he contends the
evidence is insufficient to prove the value of the vehicle taken
exceeded $200. Concluding the evidence was not sufficient, we
reverse.
We review the evidence in the light most favorable to the
Commonwealth granting it all reasonable inferences arising from
it. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d
415, 418 (1987). The defendant obtained the victim's car after
contracting to clean it. When he did not return the car as
agreed, the victim reported it stolen. Later, a Maryland deputy
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
sheriff stopped the defendant for driving the car erratically.
Before the deputy completed his investigation, the defendant
sped off. Maryland police chased the defendant, who covered 30
to 35 miles in twenty minutes while hitting speeds of more than
100 miles per hour. The chase ended when the defendant wrecked.
The car was a 1993 Toyota Tercel. In response to the
question, "About how much was the car worth?" the victim
replied, "I paid 3,000 for it." The victim provided no further
information about his opinion of the value of the car or even
indicated how long he had owned the car. The Commonwealth
introduced a photograph of the car taken at the scene but
presented no other evidence of the value of the car.
"[T]he burden is upon the Commonwealth to prove beyond a
reasonable doubt that the value of the goods stolen equals at
least the amount fixed by statute in definition of the offense."
Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792
(1981) (citation omitted).
While it is true that the burden is on
the plaintiff to prove the extent of damages
with reasonable certainty, she is not
required to prove with mathematical
precision the exact amount of loss when the
existence of damage is established and the
facts and circumstances proven are such as
to permit an intelligent and probable
estimate of the amount of damages or loss
sustained.
Gertler v. Bowling, 202 Va. 213, 215, 116 S.E.2d 268, 270 (1960)
(citations omitted).
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The purchase price of an item is admissible and is
competent evidence of its current value, Robinson v.
Commonwealth, 258 Va. 3, 5-6, 516 S.E.2d 475, 476 (1999), and
the owner's opinion of value is admissible, Walls v.
Commonwealth, 248 Va. 480, 482, 450 S.E.2d 363, 364 (1994).
"While the original purchase price of an item may be admitted as
evidence of its current value, there must also be 'due allowance
for elements of depreciation.'" Dunn, 222 Va. at 705, 284
S.E.2d at 792 (quoting Gertler, 202 Va. at 215, 116 S.E.2d at
270).
The evidence produced did not provide the jury sufficient
information with which to make a finding of value beyond a
reasonable doubt. While the victim purchased the car for
$3,000, the jury had no evidence of how long he owned the car or
how it may have depreciated during his ownership. The car could
have been six years old at the time of the offense, but the jury
did not know its cost when new or its condition when the victim
bought it. The jury saw a photograph of the car and heard the
evidence the car reached speeds exceeding 100 miles per hour and
averaged ninety miles an hour for a twenty-minute period.
However, the evidence provided was not sufficient to permit a
determination of value without speculating based on whatever
personal experience the individual jurors may have had in
determining the market value of automobiles.
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We conclude that the evidence was not sufficient to permit
a person of ordinary knowledge and experience to conclude the
car was worth more than $200 when the defendant took it.
Accordingly, we reverse the conviction of felonious unauthorized
use and dismiss the indictment because the Commonwealth elected
not to have the jury instructed on any lesser-included offense.
Reversed and dismissed.
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