COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Baker and Overton *
Argued at Norfolk, Virginia
JESSIE LAMONT MERCER, A/K/A
TONY HORICE DAVIS
OPINION BY
v. Record No. 2663-97-1 JUDGE JOSEPH E. BAKER
MARCH 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Asha S. Pandya, Assistant Public Defender
(Lynndolyn T. Mitchell, Senior Assistant
Public Defender; Office of the Public
Defender, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jessie Lamont Mercer, also known as Tony Horice Davis,
(appellant) appeals from his conviction by the Circuit Court of
the City of Virginia Beach (trial court) for violating Code
§ 18.2-94. The sole issue presented is whether the evidence was
sufficient to find him guilty of that offense. Finding the
evidence sufficient, we affirm the judgment of the trial court.
*
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999, and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom. See
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). The judgment of a trial court will be disturbed only if
plainly wrong or without evidence to support it. See id. The
inferences to be drawn from proven facts are matters solely for
the fact finder’s determination. See Hancock v. Commonwealth, 12
Va. App. 774, 782, 407 S.E.2d 301, 306 (1991).
Viewed accordingly, the record discloses that on May 30,
1997, Richard Lafarr observed appellant enter the grocery store
where Lafarr worked. Appellant proceeded down an aisle in the
store and looked around nervously. Lafarr, who was watching
appellant via a closed circuit television monitor, saw appellant
pick up an item and place it in his left pants pocket. Lafarr saw
the item slide down appellant’s pants leg to his ankle. Appellant
repeated this action with a second item, and again Lafarr saw it
fall down to the bottom of appellant’s pants leg, without falling
to the floor.
Store employees subsequently took appellant into custody and
recovered two six-inch by three-inch boxes of Nicorette gum from
appellant’s pants leg. The gum was valued at $110. Appellant had
no identification and no means to pay for the gum. He was wearing
baggy camouflage pants, and Lafarr noted that appellant’s left
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pants pocket was slit, allowing items to fall through the pocket
into the pants leg, all the way to his ankle. The pants had
drawstrings at the cuffs that prevented the items from falling out
of the pants and onto the floor. Appellant presented no evidence
in his own behalf.
The Commonwealth charged appellant with violating Code
§ 18.2-94 by possessing "certain tools, implements, or outfit with
the intent to utilize them to commit burglary, robbery, or
larceny." Code § 18.2-94 provides:
If any person have in his possession any
tools, implements or outfit, with intent to
commit burglary, robbery or larceny, upon
conviction thereof, he shall be guilty of a
Class 5 felony. The possession of such
burglarious tools, implements or outfit by
any person other than a licensed dealer,
shall be prima facie evidence of an intent to
commit burglary, robbery or larceny.
The Commonwealth contends that the baggy pants with the slit
pocket and drawstring at appellant’s ankle area permitted the fact
finder to reasonably infer that the pants were prepared and worn
into the store for the intended purpose to commit larceny and, as
such, constituted an "outfit" under Code § 18.2-94. Appellant
contends that because pants are not commonly used to break into a
structure, they were not intended by the legislature to constitute
an "outfit." We disagree.
The term "outfit" is not defined in Code § 18.2-94 or
elsewhere in the Code. "Generally, the words and phrases used in
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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). The commonly accepted definitions 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. See Webster’s Third New International
Dictionary 1601 (1993).
The judgment of a trial court will be disturbed only if
plainly wrong or without evidence to support it. See Martin, 4
Va. App. at 443, 358 S.E.2d at 418. The inferences to be drawn
from proven facts are matters solely for the fact finder’s
determination. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989).
In Moss v. Commonwealth, 29 Va. App. 1, 509 S.E.2d 510
(1999), we rejected the defendant’s assertion that Code § 18.2-94
only proscribed the possession of tools or implements used to
commit burglary, noting that the statute "criminalizes possession
of 'tools, implements, or outfit' with the intent to commit any
one of three offenses, burglary, robbery or larceny." See id. at
3 n.1, 509 S.E.2d at 511 n.1 (quoting Code § 18.2-94). "Code
§ 18.2-94 requires proof that the offending tools, implements or
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outfit were intrinsically 'burglarious' only when the Commonwealth
relies upon the statutory presumption to establish the requisite
criminal intent." Id. at 4-5, 509 S.E.2d at 512. A defendant is
still subject to conviction under the statute if the Commonwealth
can prove, independent of the statutory presumption, that the
defendant possessed a non-burglarious tool, implement, or outfit
with the intent to commit larceny. See id. at 4, 509 S.E.2d at
511.
An item of clothing that is altered to facilitate shoplifting
can reasonably be considered wearing apparel designed to be worn
in a particular situation. See Webster’s Third New International
Dictionary at 1601. We hold, therefore, that a pair of pants can
constitute an "outfit" as that term is used in Code § 18.2-94. A
pair of pants is not necessarily "burglarious," that is, it is not
an item commonly used to break into a structure. For that reason,
to convict appellant under Code § 18.2-94, the Commonwealth was
required to prove that appellant possessed these pants with the
intent to use them to commit larceny. See Moss, 29 Va. App. at 4,
509 S.E.2d at 511.
"Because direct proof of intent is often impossible, it must
be shown by circumstantial evidence." Servis v. Commonwealth, 6
Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). "Circumstantial
evidence is as competent and is entitled to as much weight as
direct evidence, provided it is sufficiently convincing to exclude
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every reasonable hypothesis except that of guilt." Coleman v.
Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). But
"[t]he Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the evidence, not those that spring from
the imagination of the defendant." Hamilton v. Commonwealth, 16
Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). "Whether a
hypothesis of innocence is reasonable is a question of fact."
Herrel v. Commonwealth, 28 Va. App. 579, 587, 507 S.E.2d 633, 637
(1998).
All the tools, implements or outfits included in Code
§ 18.2-94 may be, and usually are, designed and manufactured for a
lawful purpose. Mere possession thereof is not a crime. Burnette
v. Commonwealth, 194 Va. 785, 790, 75 S.E.2d 482, 485-86 (1953).
It has been held, and Code § 18.2-94 provides, that possession
"shall be prima facie evidence of an intent to commit burglary,
robbery or larceny." Nance v. Commonwealth, 203 Va. 428, 429, 124
S.E.2d 900, 901 (1962) (citation omitted).
When viewed in its entirety, the record here discloses
sufficient evidence to support the finding that appellant wore the
baggy pants with the slit pocket and tied-off cuffs to facilitate
his attempted shoplifting. The record shows that appellant
entered the grocery store with no money or other means on his
person to pay for the gum and that he looked about in a suspicious
manner. He then placed two packs of Nicorette gum, valued at
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$110, into the specially prepared pocket, which allowed the gum
packages to drop through the pocket down to the tied-off cuff of
his pants, but not onto the floor. From the foregoing facts, the
record supports the trial court’s judgment that the baggy pants
with the slit pocket and tied-off cuffs constituted an "outfit"
that was possessed by appellant with the intent to be used to
commit larceny.
For the reasons stated, we affirm the judgment of the trial
court.
Affirmed.
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