Charles v. Commonwealth

• Decision Date: 29 April 2014
• Docket Number: Record No. 0790–13–1.
• Citation: 756 S.E.2d 917,63 Va.App. 289
• Court: Virginia Court of Appeals
• Parties: Yvonie Décor CHARLES v. COMMONWEALTH of Virginia.

63 Va.App. 289

756 S.E.2d 917

Yvonie Décor CHARLES

v.COMMONWEALTH of Virginia.

Record No. 0790–13–1.

Court of Appeals of Virginia,

Chesapeake.

April 29, 2014.

A. Robinson Winn, Deputy Public Defender (Chesapeake Public Defender's Office, on brief), for appellant.

Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS and CHAFIN, JJ.

HUMPHREYS, Judge.

Yvonie Décor Charles (“Charles”) was convicted at a bench trial in the Circuit Court of the City of Chesapeake (“trial court”) of two counts of petit larceny third offense, in violation of Code §§ 18.2–96 and 18.2–104. On appeal, Charles argues that the trial court erred in allowing the Commonwealth to amend the indictment from a charge of grand larceny to a charge of petit larceny third offense because the amendment changed the nature and character of the offense. She also argues that the evidence was insufficient to prove that she had the intent to steal.

I. BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial.” Rushing v. Commonwealth, 284 Va. 270, 274, 726 S.E.2d 333, 335 (2012).

A. Theft from Dillard's

On August 29, 2011, Lisa Fowlkes (“Fowlkes”), a security camera operator for Dillard's department store, was watching the sales floor at Dillard's when she noticed Charles and her co-defendant, Arlene McCall (“McCall”). Fowlkes saw Charles grab numerous boys' Polo shirts from one section in the store and place them on a shelf in another section of the store.¹ McCall was carrying a Macy's shopping bag that appeared to have some items in it, but it was not full. After some time looking around the store separately, Charles and McCall reconvened. At that time, McCall held the Macy's shopping bag open while Charles placed the boys' Polo shirts in the bag. Fowlkes did not lose sight of Charles or McCall, and she was absolutely sure that Charles put the Polo shirts in the Macy's bag. The women left Dillard's together with the bag containing the Polo shirts; they did not stop at any cash registers or make any purchases after taking the items from the sales floor. McCall carried the Macy's bag out of the store. Fowlkes noted that the Macy's shopping bag was fuller upon the women's departure from the store than it was when they entered.

After Charles and McCall passed all points of purchase, loss prevention officer Jerry Morgan (“Morgan”) proceeded to stop the two women. Charles charged Morgan and struck him in the chest twice with her forehead. He wrestled her to the ground. Charles finally agreed to comply with Morgan. After walking three feet towards Dillard's, Charles shoved Morgan in the chest and took off running. Morgan took her down again and waited for backup. The Polo shirts were removed from the Macy's bag in the Dillard's loss prevention office. A receipt reflects that eight Polo shirts were in the bag and they cost $29.99 each.

B. Theft from Icing ²

On May 14, 2012, Veronica Bell (“Bell”), an Icing store employee, noticed Charles looking around in the store and saw Charles put a pair of earrings inside of her bra. The earrings were long, and Bell could easily see them through Charles's revealing shirt. Charles left the store and entered the common area of the Chesapeake Square Mall without paying for the earrings. After struggling with the security guard, Charles was eventually detained.

C. Procedural History

On October 2, 2012, the grand jury indicted Charles for grand larceny, in violation of Code § 18.2–95, for the incident at the Dillard's store, and for petit larceny third offense, in violation of Code §§ 18.2–96 and 18.2–104, for the incident at the Icing store. The trial on these two charges began on November 13, 2012. The Commonwealth introduced two of Charles's prior conviction orders showing larcenous offenses: a 1995 conviction order for two counts of grand larceny in Virginia Beach, and a 1998 conviction order for second offense petit larceny in Portsmouth.

Charles's counsel made a motion to strike the grand larceny charge for lack of proof of value. The Commonwealth argued that the evidence was sufficient to support the charges, but if the court did not accept the testimony as to value, the Commonwealth would have a motion to amend the charge on the indictment from grand larceny to petit larceny third offense. The trial court ruled that the Commonwealth failed to prove that the value of the items taken from Dillard's totaled $200 or more as required to support the grand larceny charge, but that the evidence was sufficient to prove that Charles stole the items from Dillard's. The trial court asked the parties to research whether the Commonwealth could properly amend the charge in the indictment.

On March 5, 2013, almost four months after the trial, the parties reconvened before the trial court. The parties agreed that the Commonwealth's motion to amend the indictment was timely pursuant to Code § 19.2–231 and that petit larceny third offense is not a lesser-included offense of grand larceny. However, Charles's counsel argued that the Commonwealth should not be allowed to amend the charge because the amendment changed the nature and character of the offense. The trial court continued the case once again in order to review the trial transcript.On April 11, 2013, the trial court decided that the Commonwealth could properly amend the charge from grand larceny to petit larceny third offense. The trial court arraigned Charles on the amended indictment, and she pled not guilty. Charles's counsel renewed his motion to strike arguing that the facts were insufficient to prove third offense petit larceny because the Commonwealth failed to prove intent to steal on both charges. The trial court found that intent to steal was proven beyond a reasonable doubt. The trial court also found that the evidence introduced of Charles's prior larceny convictions sufficiently met the statutory requirements of petit larceny third or subsequent offense. The trial court convicted Charles of two counts of petit larceny third offense and sentenced her to eight years' incarceration with four years suspended.

II. ANALYSIS

A. Amendment of the Charge

Code § 19.2–231 governs the amendment of indictments, and provides in part:

If there be any defect in form in any indictment, presentment or information, or if there shall appear to be any variance between the allegations therein and the evidence offered in proof thereof, the court may permit amendment of such indictment, presentment or information, at any time before the jury returns a verdict or the court finds the accused guilty or not guilty, provided the amendment does not change the nature or character of the offense charged.

Charles's assignment of error is that “[t]he trial court erred, as it was improper to allow the Commonwealth to amend the grand larceny charge to third offense petty larceny, in that the amendment changed the nature and character of the offense.” She asserts that “[t]he amendment of the indictment changed the nature and character of the offense by removing the $200 threshold which is required for grand larceny.”

“In determining whether the trial court made an error of law, ‘we review the trial court's statutory interpretations and legal conclusions de novo.’ ” Rollins v. Commonwealth, 37 Va.App. 73, 79, 554 S.E.2d 99, 102 (2001) (quoting Timbers v. Commonwealth, 28 Va.App. 187, 193, 503 S.E.2d 233, 236 (1998)).

“The purpose of an indictment ‘is to give an accused notice of the nature and character of the accusations against him in order that he can adequately prepare to defend against his accuser.’ ” Walshaw v. Commonwealth, 44 Va.App. 103, 109, 603 S.E.2d 633, 636 (2004) (quoting King v. Commonwealth, 40 Va.App. 193, 198, 578 S.E.2d 803, 806 (2003)). Code § 19.2–231 “is remedial in nature and is to be liberally construed in order to achieve the laudable purpose of avoiding further unnecessary delay in the criminal justice process by allowing amendment, rather than requiring reindictment by a grand jury.” Powell v. Commonwealth, 261 Va. 512, 533, 552 S.E.2d 344, 356 (2001); see also Sullivan v. Commonwealth, 157 Va. 867, 877, 161 S.E. 297, 300 (1931) ( “The manifest purpose of this statute is to allow amendments which avoid unnecessary delays and further the ends of justice, without prejudice to the substantial right of the accused to be informed of the accusation, and to one fair trial on the merits.”).

“[W]here there is ‘similarity of purpose and subject matter’ of the Code sections involved, ‘an amendment to an indictment [that merely] changes the Code provision under which a defendant is charged ... does not change’ ‘the nature or character of the offense charged’ and is permissible under the provisions of [Code] § 19.2–231.' ” Dunaway v. Commonwealth, 52 Va.App. 281, 297, 663 S.E.2d 117, 125 (2008) (quoting Edwards v. Commonwealth, 218 Va. 994, 1003, 243 S.E.2d 834, 839 (1978)) (second and third alteration in original). In Dunaway, the appellant was originally charged with violating Code § 18.2–248(H1), distribution or intent to distribute at least 2.5 but less than 5.0 kilograms of a mixture containing cocaine base. Id. at 295, 663 S.E.2d at 124. The trial court permitted the Commonwealth to amend the charge to Code § 18.2–248(H2), distribution or intent to distribute at least 5.0 kilograms of a mixture containing cocaine base. Id. at 296, 663 S.E.2d at 125. This Court affirmed the trial court's decision to allow the Commonwealth to amend the indictment. Id. at 298, 663 S.E.2d at 126.

It is clear ... that the amendment of the indictment had the effect of changing only the amount of the mixture containing cocaine base to be proved by the Commonwealth and the mandatory minimum punishment appellant faced if convicted. The amendment did not alter the essential, underlying conduct on the...