Carol Bowyer Johnson v. Commonwealth of Virginia

Tuesday 27th
November, 2001.
Carol Bowyer Johnson, Appellant,
against Record No. 1354-00-3
Circuit Court No. CR00011925-03
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bray, Annunziata,
Bumgardner, Frank, Humphreys, Clements and Agee
Craig P. Tiller (Davidson, Sakolosky, Moseley, &
Tiller, on brief), for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for
appellee.
By published opinion dated March 20, 2001, a panel of this
Court affirmed the judgment of the trial court. See Johnson v.
Commonwealth, 35 Va. App. 134, 543 S.E.2d 605 (2001). We stayed the
mandate of that decision and granted a rehearing en banc.
Upon rehearing en banc, it is ordered that the stay of the
March 20, 2001 mandate is lifted, and the judgment of the trial court
is affirmed unanimously for the reasons set forth in the panel
opinion.
It is ordered that the trial court allow counsel for the
appellant an additional fee of $200 for services rendered the
appellant on the rehearing portion of this appeal, in addition to
counsel's costs and necessary direct out-of-pocket expenses. This
amount shall be added to the costs due the Commonwealth in the
March 20, 2001 mandate.
This order shall be published and certified to the trial
court.
A Copy,
Teste:
Cynthia McCoy, Clerk
By:
Deputy Clerk
Wednesday 6th
September, 2000.
Carol Bowyer Johnson, Appellant,
against Record No. 1354-00-3
Circuit Court No. CR00011925-03
Commonwealth of Virginia, Appellee.
From the Circuit Court of the City of Lynchburg
Before Judge Coleman
A judge of this Court having determined that this petition
should be granted, an appeal is hereby awarded to the petitioner from
a judgment of the Circuit Court of the City of Lynchburg dated May 8,
2000.
No bond is required. The clerk is directed to certify this
action to the trial court and to all counsel of record.
Pursuant to Rule 5A:25, an appendix is required in this
appeal and shall be filed by the appellant at the time of the filing
of the opening brief.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
CERTIFICATE OF CLERK
I, Cynthia L. McCoy, Clerk of the Court of Appeals of
Virginia, do hereby certify that on September 6, 2000 an appeal
was awarded as described in the order to which this certificate
is appended. A copy of this certificate and a copy of the order
to which it is appended were this day mailed to the trial court
indicated in the order and to all counsel of record.
Given under my hand this 6th day of September, 2000.
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia
CAROL BOWYER JOHNSON
OPINION BY
v. Record No. 1354-00-3 JUDGE ROBERT J. HUMPHREYS
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Craig P. Tiller (Davidson, Sakolosky,
Moseley & Tiller, P.C., on brief), for
appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Carol Bowyer Johnson appeals her conviction, after a bench
trial, of misdemeanor concealment of merchandise, in violation of
Code § 18.2-103. Johnson argues the evidence was insufficient to
support the conviction.
I. Background
Between the months of August and November, 1999, security
personnel of a Lynchburg Wal-Mart store observed Johnson in the
store on several occasions, behaving suspiciously. On August
16, 17, 22, and 31, October 12 and 22, and November 15 and 22,
respectively, security personnel observed Johnson, by video
surveillance, enter the cigarette aisle of the store, pick up
several cartons of cigarettes, place them in her shopping cart
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and cover them with items of clothing and other items she
already had in her cart. 1
On August 31, after viewing Johnson's behavior on video,
security officer Andrew Hill went to the main floor and followed
Johnson after she left the cigarette aisle. Johnson had a male
companion with her at the time. Hill followed the two to the
toy department, where he observed Johnson "taking the cartons of
cigarettes and . . . stacking them behind a rack of toy boxes,"
and "fixing the boxes where the cigarettes could not be seen."
He then observed Johnson push her cart to the lawn and garden
department, leave the cart with the other merchandise still in
it, and exit the store with her companion.
On an unspecified date in October, Hill again observed
Johnson's behavior on video and followed her to the back of the
store to the "same aisle." He again observed her taking the
cigarettes out of the cart and putting them behind "all the
boxes of toys and concealing them." Johnson then pushed her
cart to the pet department, left her cart by the last aisle, and
exited the store through the lawn and garden department.
On another occasion in October, Johnson approached Angela
Culpepper, a clerk in the lawn and garden department, and "asked
her questions." Culpepper asked Johnson to wait a moment. When
1
Each of the surveillance videos recording Johnson's
activities in the cigarette aisle of the store was admitted as
evidence at trial.
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Culpepper returned her attention to Johnson, she had abandoned
another shopping cart full of merchandise and left the store.
"Around October 22, 1999," Culpepper had another occasion to
observe Johnson. On this occasion, Johnson asked Culpepper some
questions "about plants." When Culpepper "turned [her] back,"
Johnson again abandoned her cart of merchandise and left the
store. Culpepper testified that she observed "a big bulk" under
Johnson's sweatshirt when Johnson first approached her. 2
On November 15, 1999, Hill again observed Johnson on video.
This time he saw her take a stack of cigarette cartons, placing
some under her arm and holding some in her hands, and walk out
of view of the camera. Hill followed Johnson to the "same aisle
of toys." He testified that Johnson seemed "spooked" and came
out of the aisle and walked around the store, with the
cigarettes now in her shopping cart, covered by clothing items.
Johnson went to the front of the store and walked out of the
store, leaving her cart full of clothing and cartons of
cigarettes by the main doors.
Finally, on November 22, 1999, security officer Jerry
Thomas observed Johnson engaging in the same behavior on video
and followed her out of the cigarette area to the "same aisle"
in the toy department. He observed Johnson open a carton of the
cigarettes and walk to another aisle. At that point, a woman,
2
Lillie Bowyer, Johnson's mother, testified that Johnson
was pregnant during that time.
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who Thomas testified he thought was Johnson's mother, walked up
and looked at Thomas, then at Johnson. The two women proceeded
to the grocery department, left the shopping cart in the grocery
main aisle, and left the store. Thomas found the cigarettes and
other items in the cart and followed Johnson and her companion
out of the store. "About halfway down the parking lot [Johnson]
asked [Thomas] if [he] had a fucking problem." She continued
toward a car and got in with the other woman. Johnson "flipped
[Thomas] the finger through the window of the car and yelled
'you fat, mother fucker.'" Thomas took down Johnson's license
plate number and contacted the police.
On March 6, 2000, Johnson was indicted on eight (8) counts
of concealment, third or subsequent offense, in violation of
Code §§ 18.2-103 and 18.2-104. After the presentation of
evidence at the May 8, 2000 trial, the trial court dismissed
seven of the eight charges and convicted Johnson of only one
count of misdemeanor concealment for her actions on August 31,
1999. The trial judge stated the following:
Miss Johnson, I am going to find as fact and
law that the Commonwealth has proven beyond
a reasonable doubt that on August 31st,
1999, you concealed merchandise within the
meaning of the statute . . ., in other
words, with intent to defraud Wal-Mart.
* * * * * * *
There's just no explanation for you
concealing, first, in your cart and then
behind the toys.
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On appeal, Johnson contends the evidence was insufficient
to establish that she concealed the cigarettes within the
meaning of the statute. As a result, she argues there was no
evidence from which the court could infer her intent to defraud
Wal-Mart of the value of the goods. 3
II. Analysis
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). When the
sufficiency of the evidence is challenged on appeal, "it is our
duty to look to that evidence which tends to support the verdict
and to permit the verdict to stand unless plainly wrong."
Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457
(1961). "The judgment of a trial court sitting without a jury
is entitled to the same weight as a jury verdict and will not be
set aside unless it appears from the evidence that the judgment
is plainly wrong or without evidence to support it." Martin, 4
Va. App. at 443, 358 S.E.2d at 418.
To convict an accused for unlawful concealment in violation
of Code § 18.2-103, "[t]he Commonwealth must prove (1) a willful
concealment of merchandise, done (2) with the intent to convert
3
Johnson also assigns error to the trial court's failure to
grant her motions to strike and bases her contention on the same
sufficiency argument. Accordingly, we treat all of Johnson's
assignments of error as a single sufficiency issue.
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the merchandise or to defraud the storekeeper." Snead v.
Commonwealth, 11 Va. App. 643, 646, 400 S.E.2d 806, 807 (1991). 4
The willful concealment of goods while still on the premises is
prima facie evidence of intent to defraud the owner of the value
of the goods or merchandise at issue. Code § 18.2-103.
Johnson argues that because no evidence proved that she
concealed the items on her person, her actions did not fall
within the purview of the statute. Although it appears that no
reported appellate decision has applied the concealment statute
to a case where an item was concealed somewhere other than on
the defendant's person, we disagree with Johnson's contention.
4
Code § 18.2-103 provides the following in pertinent part:
Concealing or taking possession of
merchandise; altering price tags;
transferring goods from one container to
another; counseling, etc., another in
performance of such acts--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 . . . when
the value of the goods or merchandise
involved in the offense is less than $200,
shall be guilty of petit larceny . . . .
The willful concealment of goods or
merchandise of any store . . . while still
on the premises thereof, shall be prima
facie evidence of an intent to convert and
defraud the owner thereof out of the value
of the goods or merchandise.
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The plain language of the statute does not require proof of
concealment on the person. In construing a statute, "[w]here
the legislature has used words of a plain and definite import
the courts cannot put upon them a construction which amounts to
holding the legislature did not mean what it has actually
expressed." Dominion Trust Co. v. Kenbridge Constr., 248 Va.
393, 396, 448 S.E.2d 659, 660 (1994) (citations omitted). The
plain meaning of the term "conceal" is "to place out of sight;
withdraw from being observed: shield from vision or notice".
Webster's Third New International Dictionary 469 (1993). The
definition is not limited to concealment on the person, and the
plain language of the statute does not place such a limitation
on the term. Moreover, the title to the statute contemplates
concealment or taking possession of merchandise by "transferring
goods from one container to another." Thus, we decline
Johnson's invitation to change the plain meaning of Code
§ 18.2-103 by adding the phrase "on his/her person" as a
modifier to the term "conceals."
The statute does not, however, prohibit simply the
concealment of merchandise. Instead, it prohibits a willful
concealment. "The word [willful] often denotes an act which is
intentional, or knowing, or voluntary, as distinguished from
accidental. But when used in a criminal statute it generally
means an act done with a bad purpose; without justifiable
excuse; stubbornly, obstinately, perversely. The word is also
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employed to characterize a thing done without ground for
believing it is lawful." Snead, 11 Va. App. at 646-47, 400
S.E.2d at 807 (citation omitted).
Here, the August 31, 1999 store surveillance video shows
Johnson taking several cartons of cigarettes from the shelf,
placing them in her shopping cart, then intentionally covering
them from view with items of clothing she had in her cart.
Security officer Hill testified that after viewing this video,
he followed Johnson to the toy aisle and witnessed her "putting
[the] cartons of cigarettes behind the boxes of toys . . . and
fixing the boxes where the cigarettes could not be seen."
Johnson's actions in this regard amounted to willfully placing
the goods "out of sight" and concealing the goods in the manner
contemplated by the statute. This conduct alone is prima facie
evidence of Johnson's intent to willfully defraud Wal-Mart of
the value of the goods. The trial court found that this prima
facie case was not rebutted by Johnson.
Considering the above, in conjunction with the totality of
Johnson's conduct, we hold that the trial court could reasonably
find, beyond a reasonable doubt, that Johnson willfully
concealed the goods with the intent to defraud Wal-Mart of their
value. Accordingly, the holding of the trial court is affirmed.
Affirmed.
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