COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Haley and Powell
Argued at Richmond, Virginia
RYAN SCOTT BURTON
OPINION BY
v. Record No. 0740-10-2 JUDGE JAMES W. HALEY, JR.
MAY 17, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Harold W. Burgess, Jr., Judge
Matthew T. Paulk (Matthew T. Paulk, PC, on brief), for appellant.
Joshua M. Didlake, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
I. Introduction
Ryan Scott Burton appeals his conviction for grand larceny. He maintains the trial court
erroneously admitted lay witness testimony on the value of the stolen property and convicted him
on insufficient evidence. We disagree with both assertions and affirm.
II. Facts
On May 2, 2009, Richard Dabney died in his home. The same day, his brother, Jesse
Dabney, found his body. Jesse entered the home that afternoon by punching through some glass
on the front door. Jesse screwed a piece of plywood over the hole prior to his departure. When
Jesse returned to Richard’s home on May 4, he noticed the roll-up garage door was open, the
walk-in garage door had pry bar markings on it, and Richard’s motorcycle and rifle were missing
from the garage. The house was in complete disarray, and nearly all of the screws Jesse used to
attach plywood to the front door were missing. After calling the police, Jesse surveyed the house
for additional missing items. He noticed several clear coin jars he had put in his brother’s
kitchen, including a few half-gallon and two gallon-sized jars, were empty. Jesse testified one of
the two gallon-sized jars had been more than “three fourths” full, and the other had been “really
full.” Both gallon containers “had [contained] no pennies, just quarters, dimes, and nickels.”
The smaller jars had contained “pennies and nickels and dimes.” Over Burton’s objection, Jesse
estimated the coins were worth over $200.
On May 4, the same day Jesse discovered the missing items, Ryan Burton took Richard’s
Harley Davidson motorcycle to a friend’s home to have it appraised. Burton left the motorcycle
there, where police seized it two days later. Also on May 4, Burton cashed in $385.80 worth of
coins through a cash machine inside a Food Lion store. He “put so much change” in the cash
machine that a store clerk “had to unjam it” so he could finish inserting the coins. Two days
later, Burton was arrested at his home where police recovered Dabney’s missing rifle and a
jacket that had belonged to him.
Burton was charged with grand larceny. 1 At the conclusion of the bench trial, the court
took under advisement Burton’s motion to strike. The trial court ultimately found Burton guilty
of grand larceny of Dabney’s coins.
III. Analysis
A. LAY TESTIMONY ON THE VALUE OF THE STOLEN PROPERTY
Burton argues on appeal that Jesse Dabney’s “testimony as to the value of the coins . . .
was speculative and therefore inadmissible.” Appellant’s Br. at 5. He contends that since no
evidence established “when [Jesse] put those [coin] jars in the floor,” it is “possible the jars had
been partially or completely emptied” well before Jesse discovered and reported them stolen. Id.
1
He was also charged with two counts of breaking and entering, another count of grand
larceny, one count of larceny of a firearm, and one count of assaulting a police officer. Only the
grand larceny charge related to the taking of Richard Dabney’s coins is before us on appeal.
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at 5-6. Accordingly, Burton concludes, the trial court abused its discretion by admitting Jesse
Dabney’s speculative testimony on the coins’ value.
On appeal, admissibility of evidence arguments are governed by two principles. “First,
we do not review such decisions de novo.” Thomas v. Commonwealth, 44 Va. App. 741, 753,
607 S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).
Trial courts are given broad discretion over the admissibility of evidence, and its decisions will
not be disturbed on appeal absent an abuse of discretion. See Michels v. Commonwealth, 47
Va. App. 461, 465, 624 S.E.2d 675, 678 (2006); Seaton v. Commonwealth, 42 Va. App. 739,
752, 595 S.E.2d 9, 15 (2004). Only when ‘“reasonable jurists could not differ’” do we say an
abuse of discretion occurred. Tynes v. Commonwealth, 49 Va. App. 17, 21, 635 S.E.2d 688, 689
(2006) (quoting Thomas, 44 Va. App. at 753, 607 S.E.2d at 743).
The second governing principle accepts that every fact “that tends to establish the
probability or improbability of a fact in issue is relevant.” Va. Elec. & Power Co. v. Dungee,
258 Va. 235, 260, 520 S.E.2d 164, 179 (1999) (citation omitted). In other words, “evidence has
relevance if it ‘tends to cast any light’ on any material point.” Thomas, 44 Va. App. at 753, 607
S.E.2d at 743 (citing Seaton, 42 Va. App. at 752, 595 S.E.2d at 15). The “general rule that ‘the
admissibility of evidence is within the discretion of the trial court and we will not reject the
decision of the trial court unless we find an abuse of discretion’ . . . is particularly true with
respect to an appellate ‘challenge to the reliability of the evidence.’” Joyce v. Commonwealth,
56 Va. App. 646, 663 n.4, 696 S.E.2d 237, 245 n.4 (2010) (quoting Midkiff v. Commonwealth,
280 Va. 216, 219, 694 S.E.2d 576, 578 (2010)).
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.” Walls v. Commonwealth, 248 Va. 480, 482, 450 S.E.2d
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363, 364 (1994). Opinion “testimony of a nonexpert, who is not the owner of the personal
property in question, is [also] admissible upon the subject of property value, provided the witness
possesses sufficient knowledge of the value of the property or has had ample opportunity for
forming a correct opinion as to value.” Id. at 483, 450 S.E.2d at 365 (citing Haynes v. Glenn,
197 Va. 746, 750, 91 S.E.2d 433, 436 (1956)); see also Kerr v. Clinchfield Coal Corp., 169 Va.
149, 155-56, 192 S.E. 741, 743 (1937). No “‘special training or experience is necessary for a
witness to value,’” familiarity with the property is all that is required. Id. at 155, 192 S.E. at 743
(quoting 1 Greenleaf on Evidence § 430, at 532 (16th ed. 1899)); see also Charles E. Friend, The
Law of Evidence in Virginia § 17-8 (5th ed. 1999) (“Firsthand knowledge is required,” for a
witness to testify about value.).
Here, it is unclear who owned the coin jars: Jesse or Richard Dabney. See Oral
Argument Audio at 5:30 (Mar. 29, 2011). Nonetheless, counsel stipulated Jesse had been the
person who had filled the jars with coins and put them in Richard’s house. Id. at 5:36. In his
testimony, Jesse described the number and size of the containers, the type of coins that were
housed in each, and how full each jar had been prior to the theft. 2 He testified there were two
gallon-sized jars — one “three fourths” full and the other “really full” — containing quarters,
dimes, and nickels, and several half-gallon jars containing pennies, nickels, and dimes.
Valuation of currency, with its representative value denominated upon its face, or as here, by its
color and size, is fundamentally different than valuation of any other item. By its nature,
currency’s valuation is not subject to injudicious estimation. Given the specific knowledge
2
Burton claims on appeal “there is no basis on which to conclude Burton took possession
of the coins after [as opposed to before] Richard Dabney’s death, and any such conclusion would
be mere speculation.” Appellant’s Br. at 10. Contrary to appellant’s contention, Jesse Dabney
testified the coins were missing shortly after he was asked “what was different inside the house”
on May 4th as compared with May 2nd. A reasonable factfinder could conclude from this
evidence that Jesse Dabney had observed the coin jars in his brother’s house on May 2nd, after
Richard’s death, and subsequently noticed their absence on May 4th.
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Dabney had about the size and contents of each container, the trial court did not abuse its
discretion in permitting his valuation testimony.
B. SUFFICIENCY OF THE EVIDENCE
Under settled principles, we review a trial court’s factfinding “with the highest degree of
appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231
(2006). 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, 193,
677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)
(emphasis in original). “Rather, the relevant question is whether ‘any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.’” Id. (citation omitted
and emphasis in original). We are “not permitted to reweigh the evidence,” Nusbaum v. Berlin,
273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to
preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d
402, 407 (2004). In a bench trial, a trial judge’s “major role is the determination of fact, and
with experience in fulfilling that role comes expertise.” Id. (citation omitted). “If reasonable
jurists could disagree about the probative force of the facts, we have no authority to substitute
our views for those of the trial judge.” Campbell v. Commonwealth, 39 Va. App. 180, 186, 571
S.E.2d 906, 909 (2002).
Code § 18.2-95(ii) defines grand larceny as “simple larceny not from the person of
another of goods or chattels of the value of $200 or more.” An individual commits larceny by
wrongfully taking the “goods of another without the owner’s consent and with the intention to
permanently deprive the owner of possession of the goods.” Scott v. Commonwealth, 36
Va. App. 276, 282, 549 S.E.2d 624, 626 (2001); see also Tarpley v. Commonwealth, 261 Va.
251, 256, 542 S.E.2d 761, 763-64 (2001); Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311,
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315 (2000). The value of the goods is an element of the crime that the Commonwealth must
prove beyond a reasonable doubt. Walls, 248 Va. at 481, 450 S.E.2d at 364; Knight v.
Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983); Dunn v. Commonwealth, 222 Va.
704, 705, 284 S.E.2d 792, 792 (1981). The face value of currency in circulation is prima facie
evidence of its value. 3 See Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607
(1954) (interpreting substantially similar statute) (citing Whalen v. Commonwealth, 90 Va. 544,
549, 19 S.E. 182, 183 (1894)); see also Code § 18.2-98; United States v. Kroesser, 731 F.2d
1509, 1517 (11th Cir. 1984) (stating face value of authentic circulating currency is its per se
value). 4
Burton contends the evidence was insufficient on three grounds. First, he argues no
evidence proved the coins were taken without permission of the owner. Second, he claims the
evidence fell short of proving the coins he cashed in at Food Lion were the same ones that went
missing from the victim’s house. Finally, he asserts the evidence of the coins’ value was
insufficient to show the missing coins were worth $200 or more.
In this case, the evidence amply supports the trial court’s conclusion that the missing
coins were taken without permission of the owner. It “is within the province of the [trier of fact]
to determine what inferences are to be drawn from proved facts, provided the inferences are
reasonably related to those facts.” Beck v. Commonwealth, 2 Va. App. 170, 176, 342 S.E.2d
642, 645 (1986). Here, when Jesse Dabney went to his brother’s home the first time, there was
3
Evidence can nonetheless be presented to prove that money has an extrinsic value
different than its redeemable value as legal tender. The true value of coins is affected both by
their market value to numismatics and “the tangible (i.e. intrinsic) value of the coins’ precious
metal content.” Sanders v. Freeman, 221 F.3d 846, 855-56 (6th Cir. 2000).
4
While Wright, 196 Va. at 139, 82 S.E.2d at 607, addresses the face value of paper
currency, the law “knows no difference between” coin and paper currency. See Thompson v.
Butler, 95 U.S. 694, 696 (1878). Thus in the absence of evidence to the contrary, the face value
of coin currency is prima facie evidence of its value.
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no evidence of unlawful entry and the contents of the home appeared undisturbed. Richard
Dabney was found deceased. When Jesse returned two days later, the house was in complete
disarray. He noticed pry-bar markings on the garage door and several items missing, including a
Harley Davidson motorcycle, a rifle, and the contents of several money jars. Jesse reported the
stolen items to police. Considering this evidence together, the trial court reasonably concluded
the coins were taken without permission of the owner, whether the owner was Jesse or Richard
Dabney. The trial court could determine from Jesse’s decision to file a police report that he did
not give anyone permission to disturb the coins. And Richard was deceased prior to the forced
entry and the coins’ taking.
After establishing a larceny has occurred, “the unexplained possession of recently stolen
goods permits an inference of larceny by the possessor,” Winston v. Commonwealth, 26
Va. App. 746, 757, 497 S.E.2d 141, 147 (1998) (citation omitted), and “throws upon the accused
the burden of accounting for that possession,” Hope v. Commonwealth, 10 Va. App. 381, 385,
392 S.E.2d 830, 833 (1990) (en banc) (citing Fout v. Commonwealth, 199 Va. 184, 190-91, 98
S.E.2d 817, 821-22 (1957)). Standing alone, this larceny inference is sufficient to support a
finding of guilt. Winston, 26 Va. App. at 757, 497 S.E.2d at 147; Lew v. Commonwealth, 20
Va. App. 353, 358, 457 S.E.2d 392, 394-95 (1995). 5
To raise this inference, the Commonwealth must show that the goods in question match
the general description of the recently stolen items. See Wright v. Commonwealth, 2 Va. App.
743, 747, 348 S.E.2d 9, 12 (1986). “When an accused is found in possession of goods of a type
recently stolen, strict proof of identity of the goods is not required.” Henderson v.
5
“At least since 1872 Virginia juries have been instructed that the defendant’s exclusive
possession of recently stolen goods, if he offers no reasonable explanation, permits a
presumption or inference that the defendant stole the goods.” Ronald J. Bacigal, Virginia
Practice: Criminal Offenses and Defenses at 424 (2008-09 ed.); see 2 Virginia Model Jury
Instructions, Criminal No. 36.300 (2005).
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Commonwealth, 215 Va. 811, 812-13, 213 S.E.2d 782, 783 (1975); see also Bunch v.
Commonwealth, 225 Va. 423, 437, 304 S.E.2d 271, 279 (1983) (“strict proof of identity” is not
required). In other words, 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.”
Reese v. Commonwealth, 219 Va. 671, 673, 250 S.E.2d 345, 346 (1979) (quoting Gravely v.
Commonwealth, 86 Va. 396, 402, 10 S.E. 431, 433 (1889)).
Burton claims there is no proof the coins he traded in at Food Lion were the same coins
taken from Richard Dabney’s home. The evidence shows that the very same day the coins were
discovered missing, Burton was seen with Dabney’s missing motorcycle and showed up at a
Food Lion store with $385 worth of coins to cash in for paper currency. Two days later, the
remainder of Dabney’s missing belongings, including his rifle and jacket, were discovered in
Burton’s home. This evidence considered in tandem — namely the time frame and that Burton
had recently possessed every other item reported stolen from Dabney’s home —was sufficient
for the trial court to conclude that the coins Burton cashed in at Food Lion were the same coins
taken from Dabney’s home and thus were worth more than $200.
Moreover, Burton presented to the trial court in closing argument his hypothesis that the
coins he cashed in at Food Lion were not Dabney’s missing coins. The trial court rejected this
theory and found Burton guilty of grand larceny. While a factfinder may not arbitrarily disregard
a reasonable doubt, whether “the hypothesis of innocence is reasonable is itself a ‘question of
fact,’ subject to deferential appellate review.” Clanton v. Commonwealth, 53 Va. App. 561,
572-73, 673 S.E.2d 904, 910 (2009) (en banc) (citation omitted). “Merely because defendant’s
theory of the case differs from that taken by the Commonwealth does not mean that every
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reasonable hypothesis consistent with his innocence has not been excluded.” Id. Thus, “the
question is not whether ‘some evidence’ supports the hypothesis, but whether a rational
factfinder could have found the incriminating evidence renders the hypothesis of innocence
unreasonable.” James v. Commonwealth, 53 Va. App. 671, 682, 674 S.E.2d 571, 577 (2009)
(citing indirectly Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003)).
Based on the evidence, the trial court was entitled to conclude Burton stole Dabney’s coins and
cashed them in for $385.
IV. Conclusion
In sum, the trial court did not err in permitting a lay witness to testify about the value of
coins and there is sufficient evidence to support Burton’s grand larceny conviction.
Affirmed.
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