Burton v. Commonwealth of Va..

• Decision Date: 17 May 2011
• Docket Number: Record No. 0740–10–2.
• Citation: 708 S.E.2d 444,58 Va.App. 274
• Parties: Ryan Scott BURTONv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 274

708 S.E.2d 444

Ryan Scott BURTON

v.COMMONWEALTH of Virginia.

Record No. 0740–10–2.

Court of Appeals of Virginia, Richmond.

May 17, 2011.

Matthew T. Paulk (Matthew T. Paulk, PC, on brief), Richmond, for appellant.Joshua M. Didlake, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FRANK, HALEY and POWELL, JJ.HALEY, Judge.

I. Introduction

Ryan Scott Burton appeals his conviction for grand larceny. He maintains the trial court erroneously admitted lay witness testimony on the value of the stolen property and convicted him on insufficient evidence. We disagree with both assertions and affirm.

II. Facts

On May 2, 2009, Richard Dabney died in his home. The same day, his brother, Jesse Dabney, found his body. Jesse entered the home that afternoon by punching through some glass on the front door. Jesse screwed a piece of plywood over the hole prior to his departure. When Jesse returned to Richard's home on May 4, he noticed the roll-up garage door was open, the walk-in garage door had pry bar markings on it, and Richard's motorcycle and rifle were missing from the garage. The house was in complete disarray, and nearly all of the screws Jesse used to attach plywood to the front door were missing. After calling the police, Jesse surveyed the house for additional missing items. He noticed several clear coin jars he had put in his brother's kitchen, including a few half-gallon and two gallon-sized jars, were empty. Jesse testified one of the two gallon-sized jars had been more than “three fourths” full, and the other had been “really full.” Both gallon containers “had [contained] no pennies, just quarters, dimes, and nickels.” The smaller jars had contained “pennies and nickels and dimes.” Over Burton's objection, Jesse estimated the coins were worth over $200.

On May 4, the same day Jesse discovered the missing items, Ryan Burton took Richard's Harley Davidson motorcycle to a friend's home to have it appraised. Burton left the motorcycle there, where police seized it two days later. Also on May 4, Burton cashed in $385.80 worth of coins through a cash machine inside a Food Lion store. He “put so much change” in the cash machine that a store clerk “had to unjam it” so he could finish inserting the coins. Two days later, Burton was arrested at his home where police recovered Dabney's missing rifle and a jacket that had belonged to him.

Burton was charged with grand larceny.¹ At the conclusion of the bench trial, the court took under advisement Burton's motion to strike. The trial court ultimately found Burton guilty of grand larceny of Dabney's coins.

III. Analysis

A. Lay testimony on the value of the stolen property

Burton argues on appeal that Jesse Dabney's “testimony as to the value of the coins ... was speculative and therefore inadmissible.” Appellant's Br. at 5. He contends that since no evidence established “ when [Jesse] put those [coin] jars in the floor,” it is “possible the jars had been partially or completely emptied” well before Jesse discovered and reported them stolen. Id. at 5–6. Accordingly, Burton concludes, the trial court abused its discretion by admitting Jesse Dabney's speculative testimony on the coins' value.

On appeal, admissibility of evidence arguments are governed by two principles. “First, we do not review such decisions de novo.” Thomas v. Commonwealth, 44 Va.App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh'g en banc, 45 Va.App. 811, 613 S.E.2d 870 (2005). Trial courts are given broad discretion over the admissibility of evidence, and its decisions will not be disturbed on appeal absent an abuse of discretion. See Michels v. Commonwealth, 47 Va.App. 461, 465, 624 S.E.2d 675, 678 (2006); Seaton v. Commonwealth, 42 Va.App. 739, 752, 595 S.E.2d 9, 15 (2004). Only when “ ‘reasonable jurists could not differ’ ” do we say an abuse of discretion occurred. Tynes v. Commonwealth, 49 Va.App. 17, 21, 635 S.E.2d 688, 689 (2006) (quoting Thomas, 44 Va.App. at 753, 607 S.E.2d at 743).

The second governing principle accepts that every fact “that tends to establish the probability or improbability of a fact in issue is relevant.” Va. Elec. & Power Co. v. Dungee, 258 Va. 235, 260, 520 S.E.2d 164, 179 (1999) (citation omitted). In other words, “evidence has relevance if it ‘tends to cast any light’ on any material point.” Thomas, 44 Va.App. at 753, 607 S.E.2d at 743 (citing Seaton, 42 Va.App. at 752, 595 S.E.2d at 15). The “general rule that ‘the admissibility of evidence is within the discretion of the trial court and we will not reject the decision of the trial court unless we find an abuse of discretion’ ... is particularly true with respect to an appellate ‘challenge to the reliability of the evidence.’ ” Joyce v. Commonwealth, 56 Va.App. 646, 663 n. 4, 696 S.E.2d 237, 245 n. 4 (2010) (quoting Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010)).

It is well established that “the opinion testimony of the owner of personal property is competent and admissible on the question of the value of such property, regardless of the owner's knowledge of property values.” Walls v. Commonwealth, 248 Va. 480, 482, 450 S.E.2d 363, 364 (1994). Opinion “testimony of a nonexpert, who is not the owner of the personal property in question, is [also] admissible upon the subject of property value, provided the witness possesses sufficient knowledge of the value of the property or has had ample opportunity for forming a correct opinion as to value.” Id. at 483, 450 S.E.2d at 365 (citing Haynes v. Glenn, 197 Va. 746, 750, 91 S.E.2d 433, 436 (1956)); see also Kerr v. Clinchfield Coal Corp., 169 Va. 149, 155–56, 192 S.E. 741, 743 (1937). No “ ‘special training or experience is necessary for a witness to value,’ ” familiarity with the property is all that is required. Id. at 155, 192 S.E. at 743 (quoting 1 Greenleaf on Evidence § 430, at 532 (16th ed. 1899)); see also Charles E. Friend, The Law of Evidence in Virginia § 17–8 (5th ed. 1999) (“Firsthand knowledge is required,” for a witness to testify about value.).

Here, it is unclear who owned the coin jars: Jesse or Richard Dabney. See Oral Argument Audio at 5:30 (Mar. 29, 2011). Nonetheless, counsel stipulated Jesse had been the person who had filled the jars with coins and put them in Richard's house. Id. at 5:36. In his testimony, Jesse described the number and size of the containers, the type of coins that were housed in each, and how full each jar had been prior to the theft.² He testified there were two gallon-sized jars—one “three fourths” full and the other “really full”—containing quarters, dimes, and nickels, and several half-gallon jars containing pennies, nickels, and dimes. Valuation of currency, with its representative value denominated upon its face, or as here, by its color and size, is fundamentally different than valuation of any other item. By its nature, currency's valuation is not subject to injudicious estimation. Given the specific knowledge Dabney had about the size and contents of each container, the trial court did not abuse its discretion in permitting his valuation testimony.

B. Sufficiency of the Evidence

Under settled principles, we review a trial court's factfinding “with the highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006). An appellate court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)). “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Id. (citation omitted and emphasis in original). We are “not permitted to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004). In a bench trial, a trial judge's “major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Id. (citation omitted). “If reasonable jurists could disagree about the probative force of the facts, we have no authority to substitute our views for those of the trial judge.” Campbell v. Commonwealth, 39 Va.App. 180, 186, 571 S.E.2d 906, 909 (2002).

Code § 18.2–95(ii) defines grand larceny as “simple larceny not from the person of another of goods or chattels of the value of $200 or more.” An individual commits larceny by wrongfully taking the “goods of another without the owner's consent and with the intention to permanently deprive the owner of possession of the goods.” Scott v. Commonwealth, 36 Va.App. 276, 282, 549 S.E.2d 624, 626 (2001); see also Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763–64 (2001); Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000). The value of the goods is an element of the crime that the Commonwealth must prove beyond a reasonable doubt. Walls, 248 Va. at 481, 450 S.E.2d at 364; Knight v. Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983); Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981). The face value of currency in circulation is prima facie evidence of its value.³ See Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954) (interpreting substantially similar statute) (citing Whalen v. Commonwealth, 90 Va. 544, 549, 19 S.E. 182, 183 (1894)); see also Code § 18.2–98; United States v. Kroesser, 731 F.2d 1509, 1517 (11th Cir.1984) (stating face value of authentic circulating currency is its per se value).⁴

Burton contends the evidence was insufficient on three grounds. First, he argues no evidence proved the coins were taken without...