Edwards v. Commonwealth

BEALES, J.,

dissenting.

I respectfully dissent. I believe that the evidence in this case supports the trial court’s factual conclusion that appellant’s purse fit within the definition of “outfit” that we articulated in Mercer v. Commonwealth, 29 Va.App. 380, 512 S.E.2d 173 (1999).

As a preliminary matter, the majority applies a de novo standard of review to decide this issue, citing Williams v. Commonwealth, 50 Va.App. 337, 340, 649 S.E.2d 717, 718 (2007). In Williams, this Court reviewed de novo the term “implement,” found in the same statute at issue in this case, Code § 18.2-94, and defined that term for the first time. Since this Court had not previously defined that term in the context of Code § 18.2-94, a de novo review on an issue of statutory interpretation was entirely appropriate in that case. However, we have already defined the term at issue here, “outfit,” in our decision in Mercer. Therefore, I believe that we must here actually apply a mixed standard of review. I submit that we must review the trial court’s decision and determine whether the evidence in this record supports the trial judge’s conclusion that appellant’s purse fits within our previously articulated definition of the term “outfit.”4

In Mercer, we defined “outfit,” in the context of its use in Code § 18.2-94, as follows: “The commonly accepted defini*78tions for the word ‘outfit’ include (1) the act or process of fitting out or equipping, (2) materials, tools, or implements comprising the equipment necessary for carrying out a particular project, and (3) wearing apparel designed to be worn on a special occasion or in a particular situation.” 29 Va.App. at 384, 512 S.E.2d at 175. Finding that the pair of pants Mercer had altered to commit larceny was a burglarious tool (burglary tool), we held, “An item of clothing that is altered to facilitate shoplifting can reasonably be considered wearing apparel designed to be worn in a particular situation.” Id. at 385, 512 S.E.2d at 175.

In this case, appellant used a purse to facilitate her theft of clothes from the store. The trial court, in my estimation, quite reasonably concluded that a purse may be a part of a woman’s outfit. However, this purse—or part of appellant’s outfit—was not being used as a woman normally uses a purse when appellant carried it -with her into the store. This purse did not contain any of the items normally found in a purse. To the contrary, it was completely empty so as to enable this woman to accomplish her admitted purpose of taking it into the store5—i.e., to steal by using it to steal and conceal *79considerable merchandise. Thus, while the inside of the purse had not had additional pockets sewn into it, as had been done to the pants in Mercer, the pocketbook/purse had been changed from the normal state of a purse and was carried with an entirely different purpose than a purse would normally be carried—much as the pants were altered in Mercer so that they could be used to conceal merchandise and allow the defendant in Mercer to steal. In both cases, this was done to conceal the merchandise that was taken. As such, I believe that the trial court correctly found that the purse in this case fits within the definition we used in Mercer. Thus, I find this case more analogous to Mercer than it is to Williams (in which we held that an ordinary plastic bag was not an “implement” and, therefore, a burglarious tool, for purposes of a conviction under Code § 18.2-94).

That being said, I recognize that the mere possession of “any tools, implements, or outfit” is not prohibited by [Code § 18.2-94]. Such articles “may be, and usually are, designed and manufactured for lawful purposes.” The gravamen of the offense arises from the possessor’s “intent to use” these “common, ordinary” objects for a criminal purpose specified by statute, burglary, robbery or larceny.

Moss v. Commonwealth, 29 Va.App. 1, 3, 509 S.E.2d 510, 511 (1999) (quoting Burnette v. Commonwealth, 194 Va. 785, 790, 75 S.E.2d 482, 486 (1953)). Following that logic, I certainly do not believe or suggest that every purse satisfies the definition of a burglary tool. Here, though, appellant clearly used the purse for a purpose other than its ordinary, lawful one, thereby causing it to become something other than an ordinary purse. Like the three other women who went into the store with her and also had empty purses (or in one case, an almost empty purse), appellant completely emptied the purse before she went into the store in order to carry out her *80admitted intent to steal. The purse did not have any money or a wallet in it so as to enable her to purchase an item, did not contain any identification, or contain anything else. This to me differentiates what this appellant did with this purse from a shoplifter who places an item in a purse that is otherwise being used normally (or perhaps empties an item out of a purse while in the store so as to conceal an item that the individual decides to steal). While still a crime of larceny, the pocketbook used in such a situation would probably not be a burglarious tool because it was being used primarily as a pocketbook. Here, appellant went to some trouble and planning to use part of her outfit in a way that it would normally never be used. She essentially had no purpose for that part of her outfit when she entered that store, but to use it to steal.

The General Assembly could have limited burglarious tools to “tools” and “implements,” but chose to include the word “outfit” in the statute. By choosing to include the word “outfit” in Code § 18.2-94, the General Assembly clearly intended to include items plainly defined as such in the definition of burglary tools. Otherwise, I believe the legislature would have simply included only the words “tools” and “implements.” Moreover, since the statute also does not provide any special definition for the term “outfit,” we are bound to apply that term according to its plain and ordinary meaning, as we did in Mercer, 29 Va.App. at 384, 512 S.E.2d at 175. See also Lee County v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002) (“When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that statutory language.”). I believe that, by reversing the trial court’s conclusion that appellant’s purse fits within the plain and ordinary meaning of an “outfit” under this statute, this Court essentially holds that a purse or pocketbook may never be considered a burglary tool pursuant to Code § 18.2-94. That is a conclusion I cannot reach.

Therefore, for the foregoing reasons, I would affirm the trial court and appellant’s conviction for possession of a burglary tool, in violation of Code § 18.2-94. I believe that the evidence supports the trial court’s conclusion that appellant’s *81purse, which she emptied before entering the store with the express intent to use it to steal, was changed from an ordinary item customarily associated with a woman’s outfit into a means to facilitate theft. It, therefore, fits within the definition of “outfit” that we set forth in Mercer. It is for those reasons that I must respectfully dissent.

. Even though the trial court did not specifically find which category of burglarious tool appellant’s purse fit within, our standard of review *78directs us to affirm the trial court’s decision if the empty purse fits within any one of the three categories of burglarious tools. See generally Gilliam v. Commonwealth, 49 Va.App. 508, 513-14, 642 S.E.2d 774, 778 (2007) (affirming a conviction for carrying a concealed weapon, in violation of Code § 18.2-308.2, where "[t]he trial court made no specific findings ... [and] never enunciated which description [of a concealed weapon] provided the basis for its finding of guilt.” Nevertheless, "on appeal, if there are facts to support the trial court's conclusion that the knife is either one of the enumerated items within the statute, or a ‘weapon of like kind,’ [this Court is] bound by that conclusion.”).

That being said, I am confident—given the arguments of the parties at trial (specifically, the analogies made to a hat and a pair of pants) and the reference by the trial court to pockets in a pair of pants—that the issue at trial and on appeal has been sufficiently focused on whether or not appellant’s empty purse was an "outfit” for purposes of the burglarious tool statute.

. The trial court asked appellant the following questions when appellant/defendant testified at trial:

*79Q: Why were you carrying an empty purse around?
A: Oh, ‘cause I wanted to go to the store and steal.
Q: And steal?
A: Yes.