Ricardo Casanova Faulk v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
RICARDO CASANOVA FAULK
MEMORANDUM OPINION * BY
v. Record No. 0154-97-1 JUDGE NELSON T. OVERTON
JUNE 9, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Westbrook J. Parker, Judge
Michael D. Eberhardt for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Ricardo Casanova Faulk (defendant) was convicted of grand
larceny of a cellular phone, in violation of Code § 18.2-95(2),
and possession of cocaine with intent to distribute, in violation
of Code § 18.2-248. He contends on appeal the evidence was
insufficient to prove (1) he intended to permanently deprive the
owner of the phone, (2) the value of the phone and (3) he
intended to distribute the cocaine. Because we find the evidence
sufficient, we affirm.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, no recitation of the facts is necessary.
We will reverse his convictions only if they are plainly
wrong or without evidence to support them. See Code § 8.01-680.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Appellant contends the Commonwealth did not prove he intended to
permanently deprive the victim of the phone and, therefore,
larceny was not established. "Larceny is defined as the wrongful
or fraudulent taking of personal goods of some intrinsic value,
belonging to another, without his assent, and with the intention
to deprive the owner thereof permanently." Jones v.
Commonwealth, 3 Va. App. 295, 300, 349 S.E.2d 414, 417 (1986).
"Intent is the purpose formed in a person's mind which may, and
often must, be inferred from the facts and circumstances in a
particular case." Sandoval v. Commonwealth, 20 Va. App. 133,
137, 455 S.E.2d 730, 732 (1995). The circumstances of this case
show defendant opened a cellular account and obtained a phone
using a false name and Social Security number. He was told to
return the phone after several days, but neither defendant nor
the phone ever returned. The trier of fact was entitled to infer
defendant's intent was to keep the phone.
Appellant next contends the Commonwealth did not prove the
phone was worth $200 or more and analogizes his case to Walls v.
Commonwealth, 248 Va. 480, 450 S.E.2d 363 (1994). In Walls two
used television sets were stolen. In an effort to establish
value, the Commonwealth presented the opinion testimony of an
employee of the company that had owned the televisions. The
witness was not familiar with the market value of televisions,
lacked opportunity to make himself familiar, did not know the
original price of the televisions and could not estimate their
- 2 -
depreciation. In the instant matter, two clerks working at the
cellular phone store from which the phone was stolen testified.
Their profession was phone sales. They were very familiar with
the phone market and the value of phones. They testified the
phone was worth $300 when new, and it was still in good working
condition. Defendant presented no evidence contradicting their
testimony. The trial court was entitled to infer the phone had
not depreciated more than $100 since sale and, therefore, the
elements of grand larceny had been satisfied.
Appellant finally contends there was insufficient evidence
to prove he intended to distribute the cocaine found on his
person. "Because direct proof of [the] intent [to distribute] is
often impossible, it must be shown by circumstantial evidence."
Jones v. Commonwealth, 23 Va. App. 93, 100, 474 S.E.2d 825, 828
(1996). Facts such as the "quantity of drugs and cash possessed,
the method of packaging, and whether [defendant] himself used
drugs," Poindexter v. Commonwealth, 16 Va. App. 730, 735, 432
S.E.2d 527, 530 (1993), are indicative of defendant's intent.
Defendant was found with over thirteen grams of cocaine packaged
in sixteen vials and two plastic bags. Captain Wilson of the
Suffolk Police Department testified the drugs were worth about
$100 per gram. He also testified thirteen grams was not
inconsistent with personal use, but the lack of paraphernalia
connected with personal use, such as razors, lighters or a
smoking device, indicated the cocaine was for sale.
- 3 -
Additionally, the packaging in many small, separate containers
was consistent with distribution. This evidence provides
sufficient support for defendant's conviction of possession with
intent to distribute.
Because both of defendant's convictions are not plainly
wrong or without evidence in support, we affirm.
Affirmed.
- 4 -