The Laptop, ColorTyme Rental and Grand Larceny

After Charleston Alexandria Williams, Jr. “was convicted in a bench trial of grand larceny in violation of [Virginia] Code § 18.2–95”, he appealed.  Williams v. Commonwealth, 2015 WL 1782088 (Court of Appeals of Virginia 2015). As the Court of Appeals explained, in Williams’ appeal

he challenges the sufficiency of the evidence. Specifically, he argues that, as a matter of law, the Commonwealth failed to prove that the value of the item stolen was $200 or more, and therefore, his conviction of grand larceny should be reversed and remanded for further proceedings. . . .

Williams v. Commonwealth, supra.  (As Wikipedia explains, a few U.S. states define themselves as “Commonwealths”, rather than “States.”  The use of Commonwealth is apparently, as Wikipedia notes, a matter of history, since each of the Commonwealth states either were, or were parts of, one of the original colonies.)

The court begins its opinion by explaining how, and why, the prosecution arose:

On June 5, 2012, Aaron Rye, the store manager for ColorTyme Rental, discovered that a laptop computer was missing. This particular laptop recently had been returned to the store by a customer who had been renting it. The record reflects that the computer was infested with roaches upon its return. In keeping with ColorTyme's customary procedures for dealing with roach-infested electronics, Rye removed the battery and power cord, placed the computer in a plastic bag, and then put the laptop in the freezer over the weekend to kill the roaches. Rye did not test or otherwise inspect the laptop before placing it in the freezer.

Rye removed the laptop from the freezer on June 4, 2012, and he placed the laptop, still in the bag, on Jeff Temper's desk. Neither the power cord nor the battery were reunited with the computer before it was placed on Temper's desk. Temper then moved the bag from his desk to the top of a clothes dryer in the back of the store. Based upon the store's video surveillance, Rye determined that [Williams], an employee of ColorTyme, put the laptop inside the dryer and then moved the dryer onto a truck.

Temper, the owner of ColorTyme, initially testified [at Williams’ trial] that the computer was worth `like eight hundred and something dollars’ and that, without the power cord and battery, it was `absolutely’ worth more than $200 to him. Temper conceded on cross-examination that he was unaware of the brand of the laptop that had been taken and that his estimate of value was based on a conversation he had had with Rye. [Williams] moved to strike Temper's testimony, arguing that, because Temper did not know what property was lost, he could not testify as to its value.

Williams v. Commonwealth, supra.

The Court of Appeals goes on to explain that the Commonwealth (the prosecution)

attempted to rehabilitate Temper's testimony by refreshing his recollection by showing him a copy of the police report. After some questioning from the Commonwealth and arguments by the parties, the trial court granted [Williams’] motion to strike, expressly finding that the Commonwealth had successfully refreshed Temper's recollection as to the brand of laptop taken, but had not successfully established that Temper had knowledge of the value. The trial court stated that the fact that the laptop was a Compaq was in evidence, `but nothing else about value.’

Williams v. Commonwealth, supra.

The opinion explains that after the trial judge issued his ruling, the attorneys for the prosecution and defense

engaged in a brief colloquy that resulted in the trial court asking questions of the witness. In response to the trial court's inquiry regarding value, Temper testified that the computer was worth more than $800. On cross-examination, Temper conceded that this was the value for which he would have sold the laptop when it was new. After the trial court struck his initial testimony as to value, Temper was never asked about and never testified that the computer, in its condition at the time of the theft, had a value in excess of $200.

Ultimately, the trial court found Temper's testimony regarding value sufficient to establish that the laptop was worth more than $200 when it was stolen. Accordingly, the trial court found [Williams] guilty of grand larceny.

Williams v. Commonwealth, supra.  

As is explained below, the $200 figure was significant because one of the ways Virginia Code § 18.2-95 defines “grand larceny” is that a person “commits simple larceny not from the person of another of goods and chattels of the value of $200 or more”.  In other words, the prosecution in this case could prove Williams committed grand larceny if it could prove he took property valued at $200 or more from his employer, ColorTyme Rental, without the company’s consent. Williams v. Commonwealth, supra.  

On appeal, Williams challenged the sufficiency of the evidence to support his conviction.  Williams v. Commonwealth, supra.  The Court of Appeals then explained that, 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, 710 S.E.2d 733 (Virginia Supreme Court 2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 668 S.E.2d 137 (Virginia Supreme Court 2008)). . . . [W]e 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.”’ Vincent v. Commonwealth, supra (quoting Jackson v. Virginia, 443 U.S. 307 (1979)).

This means the trial court's decision cannot be overturned on appeal unless no `”rational trier of fact”’ could have come to the conclusion it did. Kelly v. Commonwealth, 41 Va. App. 250, 584 S.E.2d 444 (Virginia Court of Appeals 2003) (en banc ) (quoting Jackson v. Virginia, supra). . . . `An appellate court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.”’ Williams v. Commonwealth, 278 Va. 190, 677 S.E.2d 280 (Virginia Supreme Court 2009) (quoting Jackson v. Virginia supra) (emphasis in the original). Instead, the only `relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Sullivan v. Commonwealth, 280 Va. 672, 701 S.E.2d 61 (Virginia Supreme Court 2010) (emphasis added).

This deferential appellate standard `applies not only to the historical facts themselves, but the inferences from those facts as well.’ Clanton v. Commonwealth, 53 Va.App. 561, 673 S.E.2d 904 (Virginia Court of Appeals 2009) (en banc). . . . Thus, a factfinder may ‘draw reasonable inferences from basic facts to ultimate facts,’ Tizon v. Commonwealth, 60 Va.App. 1, 723 S.E.2d 260 (Virginia Court of Appeals (2012) (quoting Haskins v. Commonwealth, 44 Va.App. 1, 602 S.E.2d 402 (Virginia Court of Appeals 2004)), `unless doing so would push “into the realm of non sequitur,’” Tizon v. Commonwealth, supra (quoting Thomas v. Commonwealth, 48 Va.App. 605, 633 S.E.2d 229 (Virginia Court of Appeals 2006)).

Williams v. Commonwealth, supra.  

The Court of Appeals then took up the substance of Williams’ argument on appeal, explaining that

Larceny, a common law crime, is the wrongful or fraudulent taking of another's property without the owner's permission and with the intent to permanently deprive the owner of that property. Commonwealth v. Taylor, 256 Va. 514, 506 S.E.2d 312 (Virginia Supreme Court 1998). Code § 18.2–95 defines the offense of grand larceny. It provides, in part, that `[a]ny person who . . . (ii) 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. . . .’

Williams v. Commonwealth, supra.  

The Court of Appeals then began its analysis of Williams’ argument on appeal:

[Williams] does not dispute that he was the thief. Rather, he argues that the evidence was insufficient to prove, beyond a reasonable doubt, that the value of the property he stole was $200 or more. `The value of the goods specified in [Code § 18.2–95] is an essential element of the crime, and the Commonwealth must prove that element beyond a reasonable doubt.’ Walls v. Commonwealth, 248 Va. 480, 450 S.E.2d 363 (Virginia Supreme Court 1994). Further, `[t]he value of the stolen property is measured as of the time of the theft. . . .’ Parker v. Commonwealth, 254 Va. 118, 489 S.E.2d 482 (Virginia Supreme Court 1997).

`It is well established that “the opinion testimony of the owner of personal property is competent and admissible on the question of the value of such property, regardless of the owner's knowledge of property values.”’ Burton v. Commonwealth, 58 Va.App. 274, 708 S.E.2d 444 (Virginia Court of Appeals 2011) (quoting Walls v. Commonwealth, supra). The witness need only to have had an opportunity to become familiar with the property and to form an opinion as to its true value. Kerr v. Clinchfield Coal Corp., 169 Va. 149, 192 S.E. 741 (Virginia Supreme Court 1937).

Here, without the stricken testimony, the only evidence of the laptop's value was Temper's testimony that he would have sold the laptop new for more than $800. There was no evidence to establish how old the laptop was, what its capabilities were when new or at the time of the theft, whether it still worked, what software, if any, was installed on the laptop, what its memory capability was, or any other factor that could be used to allow a factfinder to divine a value for it at the time of the theft.

`”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 v. Commonwealth, 222 Va. 704, 284 S.E.2d 792 (Virginia Supreme Court 1981) (quoting Gertler v. Bowling 202 Va. 213, 116 S.E.2d 268 (Virginia Supreme Court 1960)). As this Court recognized in Lester v. Commonwealth, 30 Va.App. 495, 518 S.E.2d 318 (Virginia Court of Appeals 1999), `technical equipment generally depreciates in value over time and that equipment which does not operate properly has significantly reduced value.’

Williams v. Commonwealth, supra.  

It went on to explain that in

Dunn v. Commonwealth, supra, evidence that a 10–year–old typewriter originally had been purchased for $150 was held to be insufficient to establish that it was worth the then statutory threshold of $100 when stolen. . . . . Although the factfinder knew both the original purchase price and the age of the typewriter, the Supreme Court found that a jury could conclude that it met the statutory threshold only by relying on `speculation and conjecture’ because there had been no evidence offered regarding “the effect of age and wear and tear on the value of” the typewriter. Dunn v. Commonwealth, supra.  

Here, the factfinder did not even know the age of the laptop, let alone have any information about wear and tear or whether the laptop was even operable. Accordingly, the evidence of value was insufficient to demonstrate that the statutory threshold was met.

The Commonwealth conceded at oral argument that, absent Temper's testimony that the laptop was worth more than $200 to him, the evidence was insufficient to establish that the laptop was worth more than $200 at the time of the theft. The Commonwealth argues that although the trial court did strike this testimony initially, it implicitly reversed that ruling in rendering its decision, allowing the testimony to form the basis of the trial court's ultimate finding as to value. We disagree with the Commonwealth.

There is no dispute that the trial court initially struck the testimony, expressly ruling that Temper's initial testimony established the brand of laptop stolen, `but nothing else about value.’ The trial court never expressly revisited this ruling.

The Commonwealth's position that the trial court implicitly reversed itself is based on the Commonwealth's argument at trial in response to a motion to strike the evidence after the close of the Commonwealth's evidence.  That argument referenced both Temper's testimony that the laptop was worth more than $200 to him and that it was worth more than $800 new. In denying the motion to strike, the Court noted that it was doing so based on what the Commonwealth had `said’ and that the Commonwealth had `proved value of over two hundred dollars on the evidence.’

Williams v. Commonwealth, supra.  

The Court of Appeals therefore found that the

better reading of the record is that the trial court, in denying the motion to strike, was relying on the testimony as to the purchase price of the laptop when new rather than the reference to the stricken evidence. It is axiomatic that stricken evidence may not form the basis for a trial court's conclusion. Absent some express statement from the trial court that it was reversing its prior evidentiary ruling, we will not assume that the trial court based its decision on testimony that it had stricken. See Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116 (Virginia Supreme Court 1979) (`In non-jury cases, it will be presumed that[,] . . . in the absence of an affirmative showing to the contrary, that only material and competent evidence is considered’).

As noted above, the Commonwealth conceded that, without the stricken testimony, the evidence failed to establish that the value of the laptop at the time of the theft met the statutory threshold. While we are not bound by this concession, the concession, coupled with the utter lack of evidence about the condition and capabilities of the laptop at the time of the theft, makes clear that the evidence was insufficient to support appellant's conviction for grand larceny.

Williams v. Commonwealth, supra.  

It went on to explain that

[h]aving found that the conviction for grand larceny must be reversed, we must remand the case to the trial court for further proceedings. [Williams’] brief seeks only to have the matter `remanded back to the trial court for sentencing on the charge of petit larceny.’ Although the evidence at trial supports such a result, the Virginia Supreme Court's decision in Britt v. Commonwealth, 276 Va. 569, 667 S.E.2d 763 (2008), precludes that resolution on the record before us.

Williams v. Commonwealth, supra.  

The Court of Appeals then pointed out that in Britt v. Commonwealth, supra, the

[Virginia] Supreme Court set aside a conviction for grand larceny after finding that the evidence did not establish that the value of the goods stolen met the $200 statutory threshold. In overturning the conviction, the Court directed

`that the case be remanded to the circuit court for a new trial on a charge of petit larceny if the Commonwealth be so advised. We do not remand solely for imposition of a new sentence on the lesser offense as we did in Commonwealth v. South, 272 Va. 1, 630 S.E.2d 318 (Virginia Supreme Court 2006), because here, unlike in South, both parties have not consented to that relief.’

 Commonwealth v. South, supra (emphasis added).

Here, although [Williams] has affirmatively consented to remand for sentencing on the lesser-included offense, the record is silent as to whether the Commonwealth consents. Given these circumstances, it may be logical to assume that the Commonwealth would consent; however, we read Britt as requiring an affirmative indication of consent on the record. Without such an indication in the record before us, we must, consistent with Britt, remand the matter to the trial court for a new trial on the lesser-included offense of petit larceny if the Commonwealth be so advised. 

Williams v. Commonwealth, supra. The court therefore did just that, i.e., remanded “the case to the trial court for a new trial on the lesser-included offense of petit larceny should the Commonwealth be so advised.” Williams v. Commonwealth, supra.