Berryman v. Moore, Civ. A. No. 85-0199-R.

• Decision Date: 10 October 1985
• Docket Number: Civ. A. No. 85-0199-R.
• Parties: Linwood BERRYMAN v. L.W. MOORE, et al.
• Court: U.S. District Court — Eastern District of Virginia

619 F. Supp. 853

Linwood BERRYMAN v. L.W. MOORE, et al.

Civ. A. No. 85-0199-R.

United States District Court, E.D. Virginia, Richmond Division.

October 10, 1985.

Linwood Berryman, pro se.

Robert H. Herring, Jr., Asst. Atty. Gen., Richmond, Va., Jacqueline G. Epps, Sr. Asst. Atty. Gen., for defendants.

ORDER

MERHIGE, District Judge.

In accordance with the accompanying memorandum, the Court orders that petitioner's petition for a writ of habeas corpus is hereby DENIED. Should petitioner desire to appeal this ruling, he may do so by filing a notice of appeal with the Clerk of the Court within 30 days of the date of entry hereof.

And it is so ORDERED.

MEMORANDUM

On February 14, 1985, petitioner, proceeding pro se and in forma pauperis, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Jurisdiction is conferred by 28 U.S.C. § 2241.

On March 12, respondent submitted a motion to dismiss alleging that the petition contained claims that had not met the exhaustion requirements imposed by § 2254(b) and that consequently the entire petition must be dismissed under the holding of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). An order was entered on July 3 granting petitioner leave to amend his petition to present only the exhausted claims. On July 16, respondents filed a motion to dismiss the amended petition; petitioner responded to the motion on August 13. Respondent's motion to dismiss is now ripe for consideration.

Petitioner's present imprisonment results from a sentence imposed in the Circuit Court of Henrico County, Virginia. Following a bench trial, petitioner was found guilty of grand larceny, Va.Code 1950 § 18.2-95, and of breaking and entering with intent to commit larceny, Va.Code 1950 § 18.2-91. On each of these counts petitioner received a sentence of ten years imprisonment with six years suspended, for a total of 20 years imprisonment of which twelve were suspended.

In his petition, petitioner alleges that the evidence presented at his trial was insufficient to sustain his conviction on either count under the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Facts

On December 16, 1983, a condominium in the Raintree Complex in Henrico County was broken into. The occupants' belongings were disturbed and some packages were opened, but at the time it did not appear that anything had been removed from the dwelling. Two weeks later, however, the owner of the condominium discovered that his high school and college classrings were missing. These rings, usually kept in a case on top of his dresser, were rarely worn by their owner, a dentist. At trial he testified that he had last worn them on December 3, 1983, and that he had not looked in their case between that time and the date that he discovered the rings were missing, when he reported their loss to the police.

On January 18, 1984, petitioner Linwood Berryman sold the rings to a local jeweler, presenting identification as required by law. He was paid less than $200.00 for them. Shortly after the sale, petitioner was arrested by the police. He told the arresting officer that he was a garbage man, that his work took him into the Rain-tree complex and that he had found the rings in a "green trashbag" while working his route. Petitioner explained that he had initially opened the bag because he had discerned the outlines of some videotapes inside and found upon opening the bag that it contained the rings as well. Petitioner did not testify at trial.

In his challenge to his convictions petitioner points to the fact that there was no physical or testimonial evidence linking him directly to the break-in. He characterizes the prosecution's case as "inferences piled upon inferences" and asserts that upon the above facts no rational trier of fact could have found him guilty of the charged offenses beyond a reasonable doubt.

The standard a federal habeas court must follow in evaluating due process challenges to the sufficiency of the evidence was outlined in Jackson v. Virginia, supra. The Court's duty is to inquire "... whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319, 99 S.Ct. at 2789. This formulation strikes a balance between preserving the role of the trier of fact as the ultimate resolver of those issues on which reasonable men could differ and ensuring that a defendant's conviction meets the due process standard of proof beyond a reasonable doubt. Employing this standard, the Court will now evaluate petitioner's three main challenges to the sufficiency of the evidence.

Grand Larceny

Petitioner was convicted of grand larceny under Va.Code § 18.2-95 which, in pertinent part, defines grand larceny as: "simple larceny not from the person of another of goods and property of the value of $200 or more." Larceny has been defined by the Virginia Supreme Court as "the wrongful or fraudulent taking of personal goods belonging to another without his consent and with the intention to deprive the owner thereof permanently." Skeeter v. Commonwealth, 217 Va. 722, 232 S.E.2d 756 (1977). In his first challenge to the sufficiency of evidence, petitioner contends that the prosecution failed to prove the element of larceny. While he concedes that a break-in occurred on December 16, petitioner argues that there was not proof beyond a reasonable doubt that the rings themselves were taken at that time. He points to the almost four week interval during which the location of the rings was uncertain in that their owner merely assumed that they were in their usual place in the case on top of his dresser. Petitioner argues from this that the inference that the rings were stolen at the time of the break-in is simply too speculative to meet the reasonable doubt standard. Although these contentions have some force, the Court is forced to reject them, concluding that in the circumstances a rational trier of fact could have found beyond a reasonable doubt that the rings were stolen at the time of the break-in.

It is, of course, true that entirely circumstantial evidence forms of necessity the valid basis for the conviction of many crimes. Nor is the prosecution obliged to negate every circumstance or explanation consistent with innocence that could flow from a given set of facts. United States v. Chappell, 353 F.2d 83 (4th Cir.1965). The following facts supported the trial judge's inference that the rings were taken at the time of the break-in. The rings were carefully stored in a box on the top of the owner's dresser; evidence presented showed that they were not removed from this box or the box disturbed save on the rare occasions when they were worn by their owner. These facts make it unlikely that the rings could have been lost through carelessness or accident. Nor was the time during which they were unaccounted for before and after the break-in so long as to dispel the reasonable inference that they were taken at that time. Finally, the trial judge, disbelieving petitioner's testimony as to how he came into possession of the rings, could have made the inference that the rings had been come by illegally. Believing they had been stolen, he might also reasonably infer that the theft occurred at the time of the only known forced entry. Consideration of these factors leads the Court to conclude that a rational trier of fact could have found beyond a reasonable doubt that the rings were stolen at the time of the break-in.

Petitioner's second contention is that the evidence failed to establish that the stolen rings had a value of over $200 as is required by Va.Code § 18.2-95 and that consequently he should not have been found guilty of grand larceny. Value is an essential element of the offense of grand larceny and the Commonwealth is required to prove that the value of stolen property is at least equal to the statutory amount. Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954). In addressing the question of whether the Commonwealth proved the statutory element of $200.00 value, a critical question is under what standard should the value of stolen property be determined. There are a number of alternatives; original cost, value to the owner, and replacement cost can be rumbered among the possibilities. The general rule at common law, however, is that the value of stolen property for the purposes of grading the offense of larceny is determined if possible by its fair market value. See Am.Jur.2d Larceny, § 45 (1970).

Because it is the law of Virginia that establishes the offense of grand larceny it is to that State's law that the Court must first look in determining how its elements are to be defined. Although Virginia cases have not dealt with the subject at length there are strong indications that in Virginia also the "value of an object of larceny is the fair market value at the time and place of theft." Va.Model Jury Instructions; Criminal: Larceny & Related Offenses — Scope Note II-24, Supp. # 5 (1984). Virginia cases bear this out.

In Dunn v. Commonwealth, 222 Va. 704, 284 S.E.2d 792 (1981) the Virginia Supreme Court reversed a conviction of grand larceny where the only evidence of the value of the stolen item, a ten-year-old television set, was its original cost. The Court stated "without a showing of the effect of age and wear and tear on the value of an item such as a typewriter, the jury might be misled to believe that original price equals current value." Id., 284 S.E.2d at 795. That "current value" is equivalent to fair "market value" is demonstrated by another Virginia case, Lund v. Commonwealth, 217 Va. 688, 232 S.E.2d 745 (1977). Defendant had been convicted of grand larceny for stealing "computer time" as evidenced by computer printouts. In rejecting the Commonwealth's contention that the cost of the labor and...