Hulcher v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia

MARK THOMAS HULCHER
OPINION BY
v. Record No. 0367-02-2 JUDGE LARRY G. ELDER
JANUARY 28, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge

Judson W. Collier, Jr. (Hooker, Bode,
Collier, Dickinson and Gardner, on briefs),
for appellant.

Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

Mark Thomas Hulcher (appellant) appeals from his bench

trial conviction for concealment pursuant to Code § 18.2-103.

On appeal, he contends the statute proscribes only the theft of

"wares offered for sale" and does not include items not offered

for sale, such as items used by a merchant to advertise or

display those wares. We hold the statute is broad enough to

include items belonging to a merchant that are not offered for

sale. Thus, we affirm appellant's conviction.

I.

BACKGROUND

On May 25, 2001, employees of a Henrico County video store

called the police after observing appellant acting suspiciously
while inside the store. An officer responded to the scene and

asked appellant whether he "had any property of the store."

Appellant admitted he had some "cover boxes" but said he "didn't

feel they were of any value." Appellant removed the cover boxes

from his jacket and gave them to the officer, who returned them

to store personnel.

The evidence established a cover box is a movie or video

box used to advertise videos that the video store offers for

rent. A cover box comprises either a video box inside a clear

plastic case or a shrink-wrapped video box with a piece of

styrofoam inside instead of a video tape. The box itself bears

the name of the movie and related pictures. It summarizes the

movie's plot and lists the cast and any awards the movie may

have won. The cover box is placed "on the shelf in front of the

actual videos [the store is] trying to rent." A video box,

while in use as a cover box, is an advertising aid only. It

bears no price tag or bar code, has no price in the store's

computer, and is not offered for sale or rent.

Although a cover box is used only for advertising and is

not available for rent with the videotape it advertises, the

video store always receives as many cover boxes for a movie as

it does videotapes of that movie. On some occasions, the store

receives the video box in cover box form with styrofoam and

shrink wrap. On other occasions, the store receives the

videotape inside the video box and has to remove the videotape
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and use its own supplies to convert the video box into a cover

box.

When a movie has "been on the wall for a while and it no

longer rents as well," the store may decide to sell it as a

previously viewed product. Under these circumstances, an

employee "put[s] the rental product video[] . . . back in [its]

cover box[] and . . . sell[s]" the box and video together. On

other occasions, the video store is required to reunite the

video with the box and return both to "the actual studio that

sen[t] . . . the movies." Under some circumstances, the video

store might give away a video box "after it ha[s] served its

useful purpose."

The investigating officer issued appellant a summons

charging him with concealment of merchandise with a value of

$5.00. The officer testified that the boxes bore no price tags

and that the figure on the warrant was "[a] replacement cost

. . . suggested to him" when he "investigate[d] through another

party not in the store." Appellant elicited this testimony from

the investigating officer on cross-examination and did not

object to the officer's testimony about replacement cost.

Appellant argued at trial that the cover boxes he concealed

did not qualify as goods or merchandise at the time of

concealment because they were not offered for sale. He conceded

that they had some value when used as cover boxes and that some

cover boxes eventually become "goods or merchandise" when
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reunited with a videotape and offered for sale, but he argued

that the cover boxes at issue were not goods or merchandise when

he concealed them.

The trial court gave counsel an opportunity to submit legal

memoranda on the issue. After receiving those memoranda, the

trial court ruled the legislature intended "goods" as used in

the concealment statute to encompass "tangible or moveable

personal property" other than merchandise. Thus, it found

appellant's behavior constituted concealment under Code

§ 18.2-103, and it convicted him of the charged offense.

II.

ANALYSIS

Appellant was convicted of violating Code § 18.2-103, which

provides as follows:

§ 18.2-103. Concealing or taking possession
of merchandise; altering price tags;
transferring goods from one container to
another; counseling, etc., another in
performance of such acts.
Whoever, without authority, with the
intention of converting goods or merchandise
to his own or another's use without having
paid the full purchase price thereof, or of
defrauding the owner of the value of the
goods or merchandise, (i) willfully conceals
or takes possession of the goods or
merchandise of any store or other mercantile
establishment, or (ii) alters the price tag
or other price marking on such goods or
merchandise, or transfers the goods from one
container to another, or (iii) counsels,
assists, aids or abets another in the
performance of any of the above acts, when
the value of the goods or merchandise
involved in the offense is less than $200,
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 shall be guilty of petit larceny and, when
the value of the goods or merchandise
involved in the offense is $200 or more,
shall be guilty of grand larceny. 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.

(Emphases added).

Appellant contends that the language in the statute shows

the legislature's intent to equate "goods" with "merchandise,"

proscribing concealment only of wares offered for sale by a

merchant. We disagree.

Under accepted principles of statutory construction, "words

and phrases used in a statute should be given their ordinary and

usually accepted meaning unless a different intention is fairly

manifest." Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447

S.E.2d 530, 534 (1994). In addition,

Proper construction seeks to harmonize the
provisions of a statute both internally and
in relation to other statutes. . . .
[L]egislative purpose can best be
"'ascertained from the act itself when read
in light of other statutes relating to the
same subject matter.'" Moreno v. Moreno, 24
Va. App. 190, 197, 480 S.E.2d 792, 796
(1997) (citation omitted). The doctrine of
pari materia teaches that "'statutes are not
to be considered as isolated fragments of
law, but as a whole, or as parts of a great,
connected homogenous system, or a simple and
complete statutory arrangement.'" Id. at
198, 480 S.E.2d at 796 (citation omitted).

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DMV v. Wallace, 29 Va. App. 228, 233-34, 511 S.E.2d 423, 425

(1999) (citation omitted).

In order to ascertain the intent of the legislature, we

turn first to the dictionary definitions of "goods" and

"merchandise." Black's Law Dictionary defines "[g]oods" as

"[t]angible or movable personal property other than money; esp.,

articles of trade or items of merchandise." Black's Law

Dictionary 701 (7th ed. 1999). "Merchandise" is defined as

"[g]oods that are bought and sold in business; commercial

wares." Id. at 1000. Thus, although "goods" may be synonymous

with "merchandise," the dictionary recognizes a definition of

"goods" which is broader than the definition of "merchandise."

Under the broader of these definitions, the term "goods"

includes not only merchandise offered for sale but also any

other items of tangible personal property belonging to the

merchant, including advertising materials, display racks,

mirrors and the like.

"Although any ambiguity or reasonable doubt as to the

proper construction of a penal statute must be resolved in favor

of the accused, a defendant is not entitled to benefit from an

'"unreasonably restrictive interpretation of the statute."'"

O'Banion v. Commonwealth, 33 Va. App. 47, 57, 531 S.E.2d 599,

604 (2000) (en banc) (quoting Holloman v. Commonwealth, 221 Va.

196, 198, 269 S.E.2d 356, 357 (1980) (quoting Ansell v.

Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979))).
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 It would be absurd to conclude that the
legislature would say the same thing twice
in one statutory provision. . . . The rules
of statutory interpretation argue against
reading any legislative enactment in a
manner that will make a portion of it
useless, repetitious, or absurd. On the
contrary, it is well established that every
act of the legislature should be read so as
to give reasonable effect to every word and
to promote the ability of the enactment to
remedy the mischief at which it is directed.

Clark v. Commonwealth, 22 Va. App. 673, 683, 472 S.E.2d 663,

667-68 (1996), aff'd on reh'g en banc, 24 Va. App. 253, 481

S.E.2d 495 (1997). These principles support the conclusion that

the legislature intended to use the broader definition of goods

so as to encompass more than just merchandise.

In addition, in Code § 18.2-103, the legislature employed

the disputed terms in the disjunctive, as "goods or

merchandise," which reinforces the conclusion that the

legislature intended the terms would not be synonymous. Code

§ 18.2-103 (emphasis added). Further, the legislature could

reasonably have feared that, if it had used only the term

"goods," the statute would be misconstrued to apply only to the

narrower definition of "goods," i.e., "articles of trade or

items of merchandise." Black's, supra, at 701. Finally,

although appellant points out that the statute proscribes

concealment "with the intention of converting goods or

merchandise . . . without having paid the full purchase price

thereof," it also proscribes concealment "with the intention

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. . . of defrauding the owner of the value of the goods or

merchandise," which makes clear that the item concealed need not

have a purchase price as long as it has some value. Code

§ 18.2-103 (emphases added).

The legislature's use of only the word "goods" in

proscribing "transfers [of] goods from one container to another"

does not require a different result. 1 The statute also covers

the transfer of "merchandise" from one container to another

because, under the above definitions, items which are

merchandise also are goods.

1
Despite appellant's claims to the contrary, how the terms
"goods" and "merchandise" are used in the title of the statute
or various judicial opinions is of little importance to our
resolution of this issue for two reasons. First, with limited
exceptions not applicable here, the body of a statute rather
than its title determines its application. See Cavalier Vending
Corp. v. State Bd. of Pharmacy, 195 Va. 626, 629-30, 79 S.E.2d
636, 638-39 (1954) (holding Virginia's constitutional provision
that "'[n]o law shall embrace more than one object which shall
be expressed in its title'" is intended to "prevent the members
of the legislature and the people from being misled" as to the
character of the legislation but does not "require that the
caption of an act state its full purpose as completely as the
act itself"); see also Code § 1-13.9 ("The headlines of the
several sections of this Code printed in black-face type are
intended as mere catchwords to indicate the contents of the
sections and shall not be deemed or taken to be titles of such
sections, nor as any part thereof, nor, unless expressly so
provided, shall they be so deemed when any of such sections,
including the headlines, are amended or reenacted.") (made
applicable to "the construction of this Code and of all
statutes" by Code § 1-13); Thurston Metals & Supply Co. v.
Taylor, 230 Va. 475, 484, 339 S.E.2d 538, 543-44 (1986)
(recognizing that headline of statute in black-face type is
"codifier's headline" as opposed to "legislative title").
Second, as appellant concedes, none of the judicial decisions he
cites directly addressed the meaning of the phrase, "goods or
merchandise," as used in Code § 18.2-103.
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 Appellant argues the concealment statute was intended to

combat shoplifting and cites the definition of "shoplift"

contained in Code § 8.01-44.4(F), which governs civil actions

brought by merchants to recover losses from shoplifting and

employee theft. 2 Appellant argues this definition supports his

position that "goods" and "merchandise" are synonymous under the

concealment statute. We reach the opposite conclusion. Code

§ 8.01-44.4(F) refers only to the theft of "merchandise"; it

does not mention the theft of "goods." Thus, the doctrine of

2
Code § 8.01-44.4 provides in relevant part as follows:

F. For purposes of this section:

* * * * * * *

"Shoplift" means any one or more of the
following acts committed by a person without
the consent of the merchant and with the
purpose or intent of appropriating
merchandise to that person's own use without
payment, obtaining merchandise at less than
its stated sales price, or otherwise
depriving a merchant of all or any part of
the value or use of merchandise: (i)
removing any merchandise from the premises
of the merchant's establishment; (ii)
concealing any merchandise; (iii)
substituting, altering, removing, or
disfiguring any label or price tag; (iv)
transferring any merchandise from a
container in which that merchandise is
displayed or packaged to any other
container; (v) disarming any alarm tag
attached to any merchandise; or (vi)
obtaining or attempting to obtain possession
of any merchandise by charging that
merchandise to another person without the
authority of that person or by charging that
merchandise to a fictitious person.
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pari materia supports the conclusion that the legislature meant

to prescribe more than the theft of merchandise under Code

§ 18.2-103. If it had intended to proscribe only the theft of

merchandise, it would have used only the term "merchandise" as

it did in Code § 8.01-44.4(F).

Appellant's contention that such an interpretation turns

Code § 18.2-103 into a general larceny statute misses the point.

Code § 18.2-103 is a larceny statute and provides that the

behavior prescribed therein constitutes grand larceny or petit

larceny depending on the value of the item or items involved in

the offense. The statute's express language indicates the

legislature's intent merely to make larcenous intent easier to

prove in cases involving the theft of articles from merchants,

who necessarily allow the general public largely unrestricted

access to both the merchandise they offer for sale and to other

goods also on their premises. 3 This interpretation of Code

3
We decline appellant's invitation to consider newspaper
and journal articles written contemporaneously with the passage
of the concealment statute as an appropriate source of
"legislative history." See, e.g., Mitchell v. Rayl, 665 P.2d
1117, 1119 (Kan. Ct. App. 1983) (rejecting newspaper article as
conclusive proof of legislative intent); 2A Norman J. Singer,
Sutherland's Statutes & Statutory Construction § 48.11, at 461
(6th ed., 2000 rev.). Furthermore, even if we were to consider
the content of those articles, they do not compel the conclusion
appellant advances. Those articles indicate that, under the law
in effect at that time, a merchant had no legal recourse against
a shopper who concealed an item belonging to the store in his
clothing or other possessions until the shopper took the stolen
item off the premises. The stated intent of the concealment
statute was "to protect a storekeeper against crooks." Thus,
the intent of the concealment statute--to permit apprehension
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§ 18.2-103 effects the intent of the legislature and does no

harm to the larger legislative scheme of which it is a part.

For these reasons, we conclude the legislature, in enacting

Code § 18.2-103, intended to proscribe the concealment of both

merchandise offered for sale and other types of goods not

offered for sale. Thus, we affirm appellant's conviction.

Affirmed.

and prosecution of individuals who conceal the property of a
store without leaving the premises--could be applied just as
appropriately to items offered for sale to the public as to
other items of tangible personal property which were not offered
for sale at the time of their theft.
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