COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Willis
Argued at Richmond, Virginia
DAVID DENONCOURT
MEMORANDUM OPINION * BY
v. Record No. 1515-09-2 JUDGE JERE M.H. WILLIS, JR.
AUGUST 10, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY
Thomas N. Nance, Judge Designate
Charles E. Haden for appellant.
Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
On appeal from his conviction of grand larceny in violation of Code § 18.2-95, David
Denoncourt contends the trial court erred (1) in finding the evidence sufficient to prove that the
value of the items taken by him equaled $200 or more, and (2) in receiving into evidence hearsay
testimony as to the cost of repairing the damage done by the theft. We affirm the judgment of the
trial court.
Background
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On May 3, 2008, Della Mancheck saw Denoncourt, accompanied by several other men,
stripping the aluminum siding off a rental mobile home owned by William Jefferson. Mancheck
watched as Denoncourt and his companions cut the siding, folded it, and placed it in the trunk of
a car. She reported this to the police, who later visited Denoncourt’s home to discuss the
incident with him. Denoncourt fled. Later, Denoncourt told police three men had stolen
aluminum and copper wire from the mobile home and had stored it in his shed. He said Effie
Parker had made two trips in her car, taking the stolen metal to Middlesex Metals to sell. He
accompanied her because “no one else had an ID.” Denoncourt said he signed the receipts for
the sale of the metals and received “approximately $200.00.”
At trial, a receipt from Middlesex Metals was produced, reflecting that Denoncourt had
received $101.09 for aluminum and copper on May 3, 2008. Judith Aldridge, owner of
Middlesex Metals, testified she had paid Denoncourt “market price” for the metal.
Upon learning that his mobile home had been vandalized, Jefferson inspected the damage
and discovered the trailer had been stripped down to “two-by-fours and insulation.” The
fixtures, electrical wiring, plumbing, and aluminum siding had been removed. Jefferson said the
mobile home had been “habitable” prior to the damage.
Over defense counsel’s hearsay objection, 1 Jefferson testified he had obtained from
contractors two estimates to repair the damage to the mobile home, one for $10,800, and the
other for $9,800. Both contractors recommended that Jefferson replace the trailer rather than
repair it.
Jefferson testified that approximately seven rolls of copper wiring had been stolen from
the trailer, each roll worth over $600. Asked, “[W]hat would you place as the value of [the
1
Defense counsel also objected to Jefferson’s testimony regarding the estimates on
relevance grounds, but did not obtain a ruling from the trial court on this objection.
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bathroom and kitchen] fixtures at the time they were taken,” he replied, “a couple grand . . . plus
they tore the bathtub.” Asked, “[W]hether or not in the condition they were in that they were
worth more than $200,” he replied, “[D]efinitely worth more than $200.” Jefferson did not place
a specific value on the stolen aluminum siding, but stated it was “over $200.00.” On
cross-examination, Jefferson acknowledged that “the figures [he’d] been giving [were] what the
value to replace those fixtures were.”
Analysis
Hearsay
We first address Denoncourt’s hearsay argument. “Decisions on the admissibility of
evidence lie within the trial court’s sound discretion and will not be disturbed on appeal absent
an abuse of discretion.” Mitchell v. Commonwealth, 25 Va. App. 81, 84, 486 S.E.2d 551, 552
(1997).
It is well accepted that an owner may testify regarding the value of his property. Haynes
v. Glenn, 197 Va. 746, 750, 91 S.E.2d 433, 436 (1956). His opinion testimony “is competent
and admissible on the question of the value of such property, regardless of his knowledge of
property values.” Id.
“It is not necessary to show that he was acquainted with the market
value of such property or that he is an expert on values. He is
deemed qualified by reason of his relationship as owner to give
estimates of the value of what he owns. The weight of such
testimony is, of course, affected by his knowledge of the value.”
Id. at 750-51, 91 S.E.2d at 436 (quoting 20 Am. Jur. Evidence § 892, p. 751) (other citations
omitted) (emphasis added). Likewise, while “[i]t is permissible for an expert to give reasons for
his opinion . . . if he testifies to information received from other sources, such information may
be considered only for the purpose of determining what weight should be given the expert’s
conclusion.” Foley v. Harris, 223 Va. 20, 29, 286 S.E.2d 186, 191 (1982).
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Jefferson was asked whether he had obtained an estimate to replace the stolen items. He
answered, “Yes, sir, I got two.” He explained he had obtained two estimates to repair the trailer
and that the estimates included the cost to replace the fixtures. Over defense counsel’s hearsay
objection, the trial court inquired as to the amount of the repair estimates.
The weight to be given Jefferson’s value testimony was for the trial court, as trier of fact,
to determine. See Haynes, 197 Va. at 750-51, 91 S.E.2d at 436. The trial court was entitled to
explore Jefferson’s knowledge of the value of the stolen items and to assess how much weight to
attach to his opinion. In making that assessment, it properly considered the basis for his
opinions. 2
Accordingly, the trial court did not abuse its discretion in allowing Jefferson to testify
regarding the repair estimates.
Proof of Value
We now consider whether the trial court erred in finding the evidence sufficient to prove
that the value of the stolen items was $200 or more. “The monetary amount specified in Code
§ 18.2-95 is an essential element of the crime of grand larceny, and the Commonwealth bears the
burden of proving this element beyond a reasonable doubt.” Britt v. Commonwealth, 276 Va.
569, 574, 667 S.E.2d 763, 765 (2008). “‘Proof that an article has some value is sufficient to
warrant a conviction of petit larceny, but where the value of the thing stolen determines the grade
of the offense, the value must be alleged and the Commonwealth must prove the value to be the
statutory amount.’” Walls v. Commonwealth, 248 Va. 480, 481, 450 S.E.2d 363, 364 (1994)
(quoting Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954)). The relevant
2
The trial court also inquired of Jefferson whether he knew the cost to replace the trailer,
which had been stripped down to its framing. Jefferson could not answer the trial court’s
question other than to state that the contractors who had prepared the repair estimates had
recommended replacing, rather than repairing, the trailer.
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value is the “current value” of the stolen items, Dunn v. Commonwealth, 222 Va. 704, 705, 284
S.E.2d 792, 792 (1981) (per curiam), “measured as of the time of the theft,” Parker v.
Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997).
The Commonwealth can establish value in a number of ways,
including the testimony of a lay person as to the property’s fair
market value, the opinion of an expert, “or by traditional
accounting principles, starting with the original cost of the item
and then factoring in depreciation or appreciation.”
Baylor v. Commonwealth, 55 Va. App. 82, 87-88, 683 S.E.2d 843, 845 (2009) (quoting DiMaio
v. Commonwealth, 46 Va. App. 755, 764, 621 S.E.2d 696, 701 (2005)) (emphasis omitted).
Standing alone, evidence of a stolen item’s replacement value is insufficient to establish
its value at the time of the theft. Id. at 90, 683 S.E.2d at 846-47. While replacement value is
probative of an item’s fair market value, additional evidence is required to “link” the
replacement value to the item’s value at the time of the taking. Thus, in Baylor evidence of
replacement cost was held insufficient to prove the value of stolen catalytic converters, even
though that cost exceeded $200.
The record reflects that used catalytic converters may not be resold
as replacement auto parts. However, that is not the same as
establishing that they have no actual value based upon the value of
their components as scrap or as recycled materials. Furthermore,
the record does not contain any evidence demonstrating a nexus or
linkage between the value of the stolen catalytic converters with
the cost of a replacement unit.
To be clear, we expressly do not hold that evidence of an
item’s replacement cost may never be used to assist in establishing
a stolen item’s value. It is axiomatic that some items appreciate in
value with the passage of time just as other items depreciate.
Moreover, it is certainly conceivable that stolen property may be of
such character or recent manufacture that replacement value
accurately reflects actual or fair market value. We simply hold that
where, as here, there is an absence of evidence linking
replacement value to an accurate determination of actual or fair
market value, mere evidence of replacement value alone is
insufficient as a matter of law to support an inference by the fact
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finder that the value of stolen property necessarily exceeds the
statutory threshold.
Id. at 89-90, 683 S.E.2d at 846-47 (citations and footnote omitted) (emphasis added).
Denoncourt argues that by acknowledging that “the figures [he’d] been giving [were]
what the value to replace those fixtures were,” Jefferson conceded that his appraisal was not his
opinion of value, but simply a recital of replacement cost, an inappropriate standard of proof.
The record does not require this reading. The “figures” given by Jefferson were the specific
replacement costs obtained by him. His estimates of value employed this predicate information,
but were plainly stated to be his appraisal of the value of the stolen items “at the time they were
taken.”
The evidence in this case included the receipt reflecting payment of $101.09 to
Denoncourt and his statement to police that he received “approximately $200.00” for the scrap
metal. In addition, Jefferson testified that he valued the fixtures “at the time that they were
taken” at $2,000, “definitely . . . more than $200.” His appraisal was based on the information
that he had gathered, but was stated as his opinion. In the context of this case, that evidence
supports the trial court’s finding that the stolen items were worth $200 or more.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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