COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia
GERALD FRANCIS ROWLAND
v. Record No. 1658-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA OCTOBER 31, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Jean Veness (Office of the Public Defender, on
brief), for appellant.
Thomas D. Bagwell, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Gerald Francis Rowland (defendant) was convicted in a bench
trial for concealment of merchandise in violation of Code
§ 18.2-103. On appeal, defendant challenges the sufficiency of
the evidence to support the conviction. We affirm the decision
of the trial court.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary for the
disposition of this appeal.
In accordance with well established principles, we assess
the sufficiency of the evidence to support a criminal conviction
upon a review of the record in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
sitting without a jury, is entitled to the same weight as a jury
verdict and will be disturbed only if plainly wrong or without
evidence to support it. Id. "The weight which should be given
to evidence and whether the testimony of a witness is credible
are questions which the fact finder must decide." Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
To convict an accused for unlawful concealment in violation
of Code § 18.2-103, "[t]he Commonwealth must prove (1) a willful
concealment of merchandise, done (2) with the intent to convert
the merchandise or to defraud the storekeeper." Snead v.
Commonwealth, 11 Va. App. 643, 646, 400 S.E.2d 806, 807 (1991);
see Code § 18.2-103. "The willful concealment of goods or
merchandise of any store or other mercantile establishment, while
still on the premises thereof, shall be prima facie evidence of
an intent to convert and defraud the owner thereof out of the
value of the goods or merchandise." Code § 18.2-103.
The evidence disclosed that defendant entered the Navy
Exchange in the City of Virginia Beach carrying a "gym bag." He
obtained a shopping cart and proceeded to the cigarette display
area. A security officer employed by the Exchange, Dan Gaonach,
noticed defendant, focused a surveillance camera on him, and
observed defendant remove several cartons of cigarettes from the
display, placing them inside the gym bag. Gaonach notified base
police, approached defendant and watched as he placed additional
cigarettes into the bag. When Gaonach confronted defendant, he
recovered six cartons of cigarettes, valued at $84, from inside
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the gym bag, and defendant remarked that he had "done something
really stupid."
This evidence clearly provided ample support for the finding
that defendant willfully concealed the cigarettes while still on
the premises of the Exchange, thereby establishing prima facie
evidence of the requisite intent to convert and defraud. See
Code § 18.2-103. Nonetheless, defendant contends that it was
insufficient to prove an intent to convert the merchandise or
defraud the storekeeper beyond a reasonable doubt.
Defendant testified that he had placed the cigarettes into
the gym bag because a physical disability prevented his use of
shopping bags and "to see how many cartons would fit." The trial
court, however, was entitled to disbelieve this testimony.
Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98
(1987) (en banc). "The mere possibility that the accused might
have had another purpose than that found by the fact finder is
insufficient to reverse the conviction." Bell v. Commonwealth,
11 Va. App. 530, 534, 399 S.E.2d 450, 452-53 (1991).
"Intent is a state of mind which can be evidenced only by
the words or conduct of the person who is claimed to have
entertained it." Banovitch v. Commonwealth, 196 Va. 210, 216, 83
S.E.2d 369, 373 (1954). We find that defendant's conduct,
together with his statement and other circumstances established
in the record, supplied sufficient evidence to prove the
requisite criminal intent.
Accordingly, we affirm the conviction.
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Affirmed.
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Gerald Francis Rowland v. Commonwealth
Combined Opinion