Britt v. Com.

PRESENT: All the Justices

RICHARD L. BRITT

v. Record No. 072175 OPINION BY
JUSTICE BARBARA MILANO KEENAN
October 31, 2008
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal from a defendant’s conviction for grand

larceny, we consider whether the evidence was sufficient to

establish that the value of the goods taken was at least $200.

Richard L. Britt was convicted in a bench trial in the

Circuit Court of the City of Richmond of grand larceny, in

violation of Code § 18.2-95, and of statutory burglary, in

violation of Code § 18.2-91. Britt’s burglary conviction is

not before us in this appeal. The circuit court sentenced

Britt for the grand larceny conviction to a term of ten years’

imprisonment, which was suspended in its entirety.

The evidence at trial showed that City of Richmond Police

Officer R. Joy Norwood responded to a report of a “break-in”

that occurred at the Chamberlayne Food Mart (the store) around

4:00 a.m. one morning. As Norwood approached the store in her

police vehicle, she observed that a window in the store had

been broken. Norwood also saw various types of packaged

tobacco products (collectively, “cigarette packs”) on the

ground outside the store’s front entrance.
 Immediately thereafter, Norwood noticed two men standing

in a parking lot across the street from the store. At that

time, Norwood saw one of these men, later identified as Britt’s

accomplice, holding a black plastic bag. Norwood also observed

the other man, later identified as Britt, reaching into the bag

in an apparent attempt to retrieve some of its contents.

When the men saw Norwood’s police car, they fled. Norwood

pursued and ultimately apprehended Britt, who had dropped three

sealed cigarette packs during the chase. Police later

retrieved these three items and the contents of the black

plastic bag.

The storeowner, Sama Azeire, arrived at the store later

that morning. He testified that he found some cigarette packs,

which were ordinarily located on shelves behind the cash

register, on the store floor. However, Azeire did not describe

the specific location of those cigarette packs on the floor.

Azeire stated that the total retail price of all the

cigarette packs retrieved from the store floor and from outside

the store was $410.59. This total amount included the retail

price of the cigarette packs found in the plastic bag, on

Britt’s flight trail, and on the floor of the store.

Defense counsel objected to the admission of Azeire’s

receipts showing the total amount of $410.59. Counsel argued

that those receipts did not establish the value of the property

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taken, because the receipts did not contain separate

tabulations distinguishing the value of the cigarette packs

found outside the store from those located inside on the store

floor. The circuit court overruled the objection and admitted

the receipts in evidence.

At the close of the Commonwealth’s case, defense counsel

made a motion to strike the evidence, which the circuit court

denied. Britt did not present evidence on his own behalf.

After denying defense counsel’s renewed motion to strike, the

circuit court found Britt guilty of both grand larceny and

burglary.

Britt appealed both his convictions to the Court of

Appeals, which denied Britt’s petition by order. Britt v.

Commonwealth, Record No. 0040-07-2 (Oct. 1, 2007). We awarded

Britt an appeal from his grand larceny conviction limited to

the question whether the evidence presented on the grand

larceny charge was sufficient to establish the value of the

property taken.

Britt contends that the evidence was insufficient as a

matter of law to establish that the value of the stolen

property was at least $200. He argues that the Commonwealth’s

evidence failed to separate the value of the items taken out of

the store from the value of the items found inside on the

floor. Britt asserts that the record in this case lacks any

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evidence that he ever seized or moved the cigarette packs found

on the store floor. According to Britt, it is equally likely

that those items were “inadvertently knocked” from the store

shelves during the taking of the items later found outside the

store, and that such inadvertent movement does not constitute

asportation for purposes of proving a larceny. Thus, Britt

argues that the cigarette packs found on the store floor should

not have been included in calculating the total value of the

stolen property, and that the record before us proves only that

he is guilty of petit larceny.

In response, the Commonwealth asserts that the crime of

grand larceny was complete the moment the cigarette packs were

removed from the store shelf, and that, regardless of their

exact location on the floor, the retail price of those items

properly was included in the valuation of the property taken.

The Commonwealth contends that the circuit court reasonably

could have inferred that Britt and his accomplice moved all the

cigarette packs from the shelf with the intent to steal them.

According to the Commonwealth, the fact that the men ultimately

were unsuccessful in removing all the displaced cigarette packs

from the store does not affect the value of the property taken.

We disagree with the Commonwealth’s arguments.

We consider the evidence in the light most favorable to

the Commonwealth, the prevailing party in the circuit court,

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and we accord the Commonwealth the benefit of all reasonable

inferences deducible from the evidence. Jay v. Commonwealth,

275 Va. 510, 524, 659 S.E.2d 311, 319 (2008); Bolden v.

Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008).

Circumstantial evidence, if convincing, is entitled to the same

weight as direct testimony. Riner v. Commonwealth, 268 Va.

296, 303, 601 S.E.2d 555, 558 (2004); Epperly v. Commonwealth,

224 Va. 214, 228, 294 S.E.2d 882, 890 (1982). However,

evidence that engenders only a suspicion or probability of

guilt is not sufficient to support a conviction. Jay, 275 Va.

at 527, 659 S.E.2d at 321; Dunn v. Commonwealth, 222 Va. 704,

705—06, 284 S.E.2d 792, 793 (1981); Coffey v. Commonwealth, 202

Va. 185, 188, 116 S.E.2d 257, 259 (1960).

When a defendant challenges the sufficiency of the

evidence, we accord the judgment of a circuit court sitting

without a jury the same weight as a jury verdict. Tarpley v.

Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001);

Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645

(1999). We will affirm the circuit court’s judgment unless it

is plainly wrong or without evidence to support it. Code

§ 8.01-680; Jay, 275 Va. at 524, 659 S.E.2d at 319; Bolden, 275

Va. at 148, 654 S.E.2d at 586; Tarpley, 261 Va. at 256, 542

S.E.2d at 763; Commonwealth v. Taylor, 256 Va. 514, 518, 506

S.E.2d 312, 314 (1998).

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 We have defined larceny, a common law crime, as the

wrongful or fraudulent taking of another’s property without his

permission and with the intent to permanently deprive the owner

of that property. Tarpley, 261 Va. at 256, 542 S.E.2d at 763;

Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000);

Taylor, 256 Va. at 518, 506 S.E.2d at 314; Bryant v.

Commonwealth, 248 Va. 179, 183, 445 S.E.2d 667, 670 (1994).

Grand larceny includes the taking, not from the person of

another, of goods having a value of $200 or more. Code § 18.2-

95; Tarpley, 261 Va. at 256, 542 S.E.2d at 763—64; Stanley, 260

Va. at 96, 531 S.E.2d at 315; Taylor, 256 Va. at 518, 506

S.E.2d at 314.

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. Walls v. Commonwealth, 248 Va. 480, 481, 450

S.E.2d 363, 364 (1994); Knight v. Commonwealth, 225 Va. 85, 88,

300 S.E.2d 600, 601 (1983); Wright v. Commonwealth, 196 Va.

132, 139, 82 S.E.2d 603, 607 (1954). Although proof that

stolen items have some value will sustain a conviction for

petit larceny, a conviction for grand larceny requires proof

that the value of the stolen goods is at least $200. Walls,

248 Va. at 481, 450 S.E.2d at 364; Wright, 196 Va. at 139, 82

S.E.2d at 607.

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 Plainly, the Commonwealth must prove that the goods taken,

as distinguished from those not taken, have a value of $200 or

more. An item is taken, for purposes of larceny, when a

defendant secures dominion or absolute control over the

property. Jones v. Commonwealth, 3 Va. App. 295, 300-01, 349

S.E.2d 414, 418 (1986); see Mason v. Commonwealth, 200 Va. 253,

256, 105 S.E.2d 149, 151 (1958); Green v. Commonwealth, 133 Va.

695, 699, 112 S.E.2d 562, 563 (1922). The duration of such

dominion or absolute control, however, may be very brief or

only momentary. Jones, 3 Va. App. at 301, 349 S.E.2d at 418;

see Green, 133 Va. at 699, 112 S.E.2d at 563; Welch v.

Commonwealth, 15 Va. App. 518, 522, 425 S.E.2d 101, 104 (1992).

The defendant must hold, seize, or grasp the property, with his

hands or otherwise. Welch, 15 Va. App. at 522, 425 S.E.2d at

104; Jones, 3 Va. App. at 301, 349 S.E.2d at 418; see Mason,

200 Va. at 256, 105 S.E.2d at 151.

In addition, proof of larceny requires that there be an

asportation, or a movement of the seized goods, however slight,

coupled with an intent to permanently deprive the owner of

those goods. See Bryant v. Commonwealth, 248 Va. 179, 183, 445

S.E.2d 667, 670 (1994); Pritchard v. Commonwealth, 225 Va. 559,

562, 303 S.E.2d 911, 913 (1983); Mason, 200 Va. at 256, 105

S.E.2d at 151. The defendant’s intent to steal must exist at

the time the seized goods are moved. McAlevy v. Commonwealth,

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44 Va. App. 318, 322, 605 S.E.2d 283, 285 (2004), aff’d, 270

Va. 378, 380, 620 S.E.2d 758, 760 (2005); Welch, 15 Va. App. at

524 n.4, 425 S.E.2d at 106 n.4; see Tarpley, 261 Va. at 256,

542 S.E.2d at 764; Pritchard, 225 Va. at 562, 303 S.E.2d at

913.

Applying these principles, we conclude that the evidence

of value in this case was insufficient as a matter of law to

establish that element of grand larceny. There was no

evidence, circumstantial or otherwise, that Britt or his

accomplice seized, grasped, or held the cigarette packs found

on the store floor so as to exercise dominion or absolute

control over them. In particular, the record is silent

regarding the relative distance of those cigarette packs from

their original location on the store shelves.

Lacking evidence that Britt or his accomplice exercised

dominion or absolute control over the cigarette packs found on

the floor, the record also necessarily fails to establish that

there was an asportation of those items, that is, movement of

the seized items accompanied by the intent to steal. In

effect, therefore, the Commonwealth asks us to speculate that

Britt and his accomplice tried to remove from the premises the

items found on the store floor, but were unsuccessful in doing

so, or that the items actually removed from the store had a

value of $200 or more. We will not engage in such speculation.

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 We hold that it is impossible to determine from the

evidence the cumulative value of the items Britt and his

accomplice seized and carried from the store. Because the

total amount of $410.59 computed by the store’s owner included

the value of the cigarette packs found on the store floor and

because there was no evidence showing the quantity or value of

those items retrieved from the floor, the total amount of

$410.59 was not competent evidence of the value of the items

removed from the store. Thus, we conclude that the

Commonwealth failed to prove that the value of the items taken

was $200 or more. In the absence of such evidence, Britt’s

conviction of grand larceny rests on speculation and cannot

stand. See Knight, 225 Va. at 88, 300 S.E.2d at 601; Dunn, 222

Va. at 705-06, 284 S.E.2d at 793.

For these reasons, we will reverse the Court of Appeals’

judgment and vacate the conviction for grand larceny. We will

remand the case to the Court of Appeals with direction that the

case be remanded to the circuit court for a new trial on a

charge of petit larceny if the Commonwealth be so advised. We

do not remand solely for imposition of a new sentence on the

lesser offense as we did in Commonwealth v. South, 272 Va. 1,

630 S.E.2d 318 (2006), because here, unlike in South, both

parties have not consented to that relief.

Reversed and remanded.

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