COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Chesapeake, Virginia
MICHAEL CRAIG POWELL
OPINION BY
v. Record No. 0026-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 14, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel T. Powell, III, Judge
Greg H. Dohrman (Knicely & Cotorceanu, on
brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Michael Craig Powell (appellant) was indicted by a grand
jury for one count of grand larceny, in violation of Code
§ 18.2-95. At the conclusion of the Commonwealth's evidence,
the trial court struck the grand larceny charge but allowed the
case to proceed on a charge of accessory after the fact to a
grand larceny, a violation of Code § 18.2-19. On appeal,
appellant contends the trial court erred in finding the evidence
sufficient to prove that he was an accessory after the fact to a
grand larceny. For the following reasons, we reverse and
dismiss.
I.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on May 10, 1998,
appellant was working at the "Toss-A-Ball" game booth at Busch
Gardens in Williamsburg, Virginia. Sergeant David Smith
(Smith), an undercover security officer at Busch Gardens, gave
appellant a marked $100 bill to play his game. Smith correctly
received $96 in change.
When questioned by security personnel whether he had a $100
bill, appellant first stated that he had cashed it with his
supervisor. Later that day, appellant admitted to Smith that he
"had not been honest about the one hundred dollar bill and he
did not give it to [his supervisor]." Appellant told Smith that
he had given the $100 bill to another employee named Kenny
Lambert (Lambert). At trial, Smith testified as follows:
He also told me that Kenny was stealing lots
of money from Busch Gardens and that Kenny
had stolen between [$]120 to $200 just
today, and that Kenny had asked [appellant]
. . . to change the one hundred dollar bill
out so that Kenny could seal [sic] the money
-- conceal the money more easily.
Lambert was working the "Toss-A-Ball" game with appellant on May
10, 1998. The marked $100 bill was never found.
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At the conclusion of the Commonwealth's evidence, the trial
court struck the grand larceny charge but allowed the case to
proceed on a charge of accessory after the fact to a grand
larceny committed by Lambert. The trial court ruled as follows:
However, the testimony from Sergeant
Smith was that [appellant] knew that Kenny,
whoever he is, was stealing the money and
that [appellant] changed the hundred dollar
bill for Kenny so that it would be easier
for Kenny to get the money out of Busch
Gardens. That is an accessory after the
fact.
* * * * * * *
I'm going to strike the Commonwealth's
evidence with regard to the grand larceny
embezzlement . . . and we'll have the
accessory after the fact to continue.
In his defense, appellant presented the testimony of
Charles Petty (Petty), an ex-employee of Busch Gardens, who
stated that it was very common for employees to change a $100
bill with other employees. Petty also testified that he knew
Lambert was taking "a lot" of money from Busch Gardens but was
not sure how much money he had taken.
At the conclusion of all the evidence, the trial court
found appellant guilty of being an accessory after the fact to a
grand larceny, stating the following:
From [appellant's] statement, I think
it's reasonably fair for the Court to infer
that he knew his friend was embezzling the
money. He gives [Lambert] a hundred dollars
and his statement to the officer, which is
unrefuted, is he gave it to him because it
would be easier to get the money out of the
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-- out of Busch Gardens. That's aiding and
abetting and assisting -- providing
assistance to a person who is committing a
crime and he is providing him with aid and
comfort.
Accordingly, the trial court convicted appellant of being an
accessory after the fact to a grand larceny, in violation of
Code § 18.2-19.
II.
Appellant argues that the evidence was insufficient to
establish that he committed the crime of being an accessory
after the fact to a grand larceny. 1 First, he contends that the
evidence was insufficient to establish that the underlying crime
had been committed. There was no evidence that Busch Gardens
lost any money on May 10, 1998, or that Kenny Lambert's till was
"short" that day. Although appellant stated that he thought
Kenny Lambert had taken "between [$]120 to $200" from Busch
Gardens, no corroborating evidence that the offense of grand
larceny had been committed was introduced. We agree.
1
Appellant also contends that the trial court erred in
failing to grant his motion to strike at the conclusion of the
Commonwealth's evidence and in allowing the case to proceed on the
charge of accessory after the fact to a grand larceny. However,
when a defendant presents evidence in his own behalf, after the
trial court denies his motion to strike made at the conclusion of
the Commonwealth's case-in-chief, the reviewing court considers
the entire record to determine whether the evidence was
sufficient. See Sheppard v. Commonwealth, 250 Va. 379, 387, 464
S.E.2d 131, 136 (1995). Having presented evidence in his defense,
we conclude that appellant waived his initial motion to strike.
Accordingly, we consider only the sufficiency of the evidence.
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The Commonwealth must establish the following three
elements to convict appellant of being an accessory after the
fact: "that the defendant: (1) 'receive[d], relieve[d],
comfort[ed], or assist[ed]' a felon (2) after knowing that the
felon was guilty of committing a completed felony and (3) that
the felony was, in fact, completed." Dalton v. Commonwealth, 29
Va. App. 316, 326, 512 S.E.2d 142, 146-47 (1999) (en banc)
(quoting Manley v. Commonwealth, 222 Va. 642, 644, 283 S.E.2d
207, 208 (1981)). "By definition, a person cannot be an
accessory without the existence of a principal offender.
Although conviction of the principal is not a condition
precedent to conviction of an accessory, conviction of an
accessory requires proof that the crime has been committed by a
principal." Redman v. Commonwealth, 25 Va. App. 215, 218, 487
S.E.2d 269, 271 (1997) (citations omitted); see also Sheppard v.
Commonwealth, 250 Va. 379, 393, 464 S.E.2d 131, 140 (1995)
(noting that "the felony must be completed" to prove that the
accused was an accessory after the fact).
In the instant case, the evidence was sufficient to prove
the first element of the accessory offense. Appellant knew that
Lambert was stealing money from Busch Gardens, and he assisted
and aided Lambert in concealing that money. However, the
Commonwealth failed to prove the remaining two elements because
the evidence was insufficient to establish that Lambert
committed a larceny of $200 or more.
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Grand larceny consists of the theft, not from the person of
another, of goods and chattels valued at $200 or more. See Code
§ 18.2-95(ii). "This statutorily specified amount is an
essential element of the offense, and the burden is on the
Commonwealth to establish that element by proof beyond a
reasonable doubt." Robinson v. Commonwealth, 258 Va. 3, 5, 516
S.E.2d 475, 476 (1999). "Proof that an article has some value
is sufficient to warrant a conviction of petit larceny, but
where the value of the thing stolen determines the grade of the
offense, the value must be alleged and the Commonwealth must
prove the value to be the statutory amount." Id. (citing Wright
v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954)).
Appellant's statement that "Kenny was stealing lots of
money from Busch Gardens and that Kenny had stolen between
[$]120 to $200 just today" provides only a range of values,
including an amount less than the statutorily required $200.
Put simply, the Commonwealth failed to prove beyond a reasonable
doubt the statutorily specified amount, which is an essential
element of the offense. Nonetheless, the Commonwealth contends
that, taken in the light most favorable to the Commonwealth,
appellant's statement that Lambert "had stolen between [$]120 to
$200" was sufficient to establish the requisite $200 value and
that we are bound by this reasonable inference. Appellant's
statement, however, established only a range of possible values
and does not constitute proof beyond a reasonable doubt that a
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theft of $200 occurred. Additionally, although Petty, an
ex-employee of Busch Gardens, testified that he knew Lambert was
taking "a lot" of money from Busch Gardens, he was not sure how
much money Lambert had taken or that Lambert had stolen at least
$200 on May 10, 1998. See Lew v. Commonealth, 20 Va. App. 353,
355, 457 S.E.2d 392, 393 (1995) ("Evidence offered to prove the
corpus delicti in a trial for larceny is insufficient where the
evidence fails to prove that property has been stolen from
another . . . .").
Absent evidence that Lambert had committed a grand larceny
of at least $200, the Commonwealth failed to prove the corpus
delicti of the principal offense. Because the Commonwealth
failed to prove the elements of the underlying grand larceny,
the evidence was insufficient as a matter of law to establish
appellant's guilt as an accessory after the fact to a grand
larceny. See Cherrix v. Commonwealth, 257 Va. 292, 305, 513
S.E.2d 642, 651 (1999) ("[I]n every criminal prosecution, the
Commonwealth must prove the element of corpus delicti, that is,
the fact that the crime charged has been actually
perpetrated."). Accordingly, appellant's conviction is reversed
and dismissed.
Reversed and dismissed.
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