Edwards v. Com.

• Decision Date: 17 February 2009
• Docket Number: Record No. 0894-07-2.
• Citation: 53 Va. App. 402,672 S.E.2d 894
• Parties: Shakil EDWARDS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

672 S.E.2d 894

53 Va. App. 402

Shakil EDWARDS v. COMMONWEALTH of Virginia.

Record No. 0894-07-2.

Court of Appeals of Virginia, Richmond.

February 17, 2009.

Horace F. Hunter, Richmond, for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY and BEALES, JJ., and CLEMENTS, Senior Judge.^*

UPON REHEARING EN BANC

ROBERT J. HUMPHREYS, Judge.

This matter comes before the Court on a rehearing en banc following a divided panel opinion of this Court. Shakil Edwards (Edwards) appeals her conviction for possession of a tool, implement or outfit with the intent to commit larceny, in violation of Code § 18.2-94. Edwards contends that the evidence was insufficient as a matter of law to prove that the purse she carried at the time she committed the larceny was a tool, implement or outfit within the meaning of Code § 18.2-94. For the following reasons, we agree and reverse her conviction.

I. BACKGROUND

"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party in the circuit court." Porter v. Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419 (2008). However, the facts of this case are not in dispute.

On June 23, 2006, Edwards entered a department store in Chesterfield County with three other women. Each woman carried a purse that "appeared to be concave" and not "full like a typical woman's purse looks." A department store security guard observed the women taking clothing from the children's and juniors' sections of the store and carry it into the fitting room area. When the women exited the fitting rooms, their purses appeared "larger in size." After the women left, the security guard entered the fitting rooms, found empty hangers on the floor, and discovered that merchandise was missing from the children's and juniors' sections.

The security guard stopped Edwards and the other women after they left the store. The security guard found four items of children's clothing inside Edwards' purse. The three other women also had stolen merchandise in their purses. Other than the stolen merchandise, three of the women's purses, including Edwards' purse, were completely empty. The fourth woman had a pair of slippers in her purse. Edwards admitted that they entered the store to steal merchandise and that she had stolen the clothing found in her purse. She was arrested and subsequently charged with grand larceny and possession of a tool, implement or outfit with the intent to commit larceny.

At the conclusion of the Commonwealth's case-in-chief, Edwards moved to strike the Commonwealth's evidence, arguing that her purse was not a tool, implement or outfit. The trial court denied the motion. Edwards testified in her own defense and admitted to stealing the clothing. Edwards also explained why she carried an empty purse into the store. The trial court asked Edwards, "Why were you carrying an empty purse around?" Edwards answered, "Oh, `cause I wanted to go to the store and steal." "And steal?" responded the judge. Edwards replied, "Yes."

At the close of her case, Edwards again moved to strike the Commonwealth's evidence on the grounds that her purse was not a "tool, implement or outfit" as contemplated by Code § 18.2-94. The court denied her motion, finding that the purse "was used to steal, and ... it fits within the definition of burglary tools." The trial court subsequently convicted Edwards of petit larceny¹ and possession of burglarious tools. Edwards appealed her conviction for possession of burglarious tools to this Court.

On May 27, 2008, a divided three-judge panel of this Court reversed Edwards' conviction. The majority held that Edwards' purse is not a tool, implement or outfit within the meaning of Code § 18.2-94. The dissent reasoned then, as it does today, that Edwards, by emptying the purse of all its contents, "clearly used the purse for a purpose other than its ordinary, lawful one, thereby causing it to become something other than an ordinary purse." Edwards v. Commonwealth, 52 Va.App. 70, 79, 661 S.E.2d 488, 493 (2008) (Beales, J., dissenting). The dissent concluded that Edwards' purse was an "outfit" within the meaning of the statute.

The Commonwealth petitioned the full Court for rehearing en banc. On July 1, 2008, we granted the Commonwealth's petition and stayed the mandate of the panel opinion.

II. ANALYSIS

On appeal, Edwards reiterates her argument that her purse is not a tool, implement or outfit. She claims that this is so because her purse "can in no way be considered innately burglarious in character." The Commonwealth argues that tools, implements and outfits need not be "innately burglarious" to fall within the scope of Code § 18.2-94 and that Edwards' purse is an "outfit," within the meaning of the statute. We agree with the Commonwealth that Code § 18.2-94 does not apply only to burglarious tools, implements and outfits. However, we disagree with the Commonwealth's characterization of the purse as an "outfit." Thus, for the following reasons, we hold that Edwards' possession of the purse is not punishable under Code § 18.2-94.

First, contrary to Edwards' argument, Code § 18.2-94 does not apply only to "innately burglarious" items. Code § 18.2-94 states:

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.

Under a cursory reading of the statute, there appears to be a disconnect between the first and second sentences. The first sentence criminalizes the possession of "any tools, implements or outfit[s]" with the intent to commit one of the listed crimes. Id. (emphasis added). However, the second sentence, apparently referring to the first sentence, states "such burglarious tools, implements or outfit[s]...." Id. (emphasis added). One might read the word "such burglarious tools ..." in the second sentence as modifying the first or at least indicating that the General Assembly only intended to punish the possession of burglarious tools, implements and outfits.

However, in Burnette v. Commonwealth, 194 Va. 785, 75 S.E.2d 482 (1953), the Supreme Court explained that the use of the word "such" was simply surplusage. The Court noted that the original version of Code § 18.2-94, enacted in 1887, stated:

"If any person ha[v]e in his possession any tools, implements, or other outfit known as burglars' tools, implements, or outfit, with intent to commit burglary, robbery, or larceny he shall be deemed guilty of a felony, and on conviction thereof, shall be punished by confinement in the penitentiary not less than five nor more than ten years. The possession of such burglarious tools, implements, or outfit, shall be prima facie evidence of an intent to commit burglary, robbery, or larceny."

Id. at 787-88, 75 S.E.2d at 484 (quoting Code of 1919, sec 4437) (emphasis added). In 1919, the General Assembly amended the statute, removing the phrase "known as burglars' tools, implements, or outfit" from the first sentence.² The Supreme Court explained the effect of that amendment on the rest of the statute, particularly the word "such": "The word `such,' as originally used was descriptive and relative, and its antecedent was `known as burglars' tools, implements, or outfit.' Elimination of this antecedent left the word meaningless; and the Revisors' failure to eliminate it also was obviously inadvertent." Id. at 788, 75 S.E.2d at 484 (emphasis added).

If, as Edwards argues, the word "burglarious" still modifies the words "tools, implements or outfit" in the first sentence "such" would then clearly not be meaningless. Essentially, Edwards contends that the statute should be read as follows:

If any person have in his possession any [burglarious] 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.

Clearly, inserting "burglarious" into the first sentence gives meaning to "such" in the second sentence. Contrary to the holding in Burnette, Edwards' interpretation makes "such" "descriptive and relative" as it would clearly refer to the burglarious tools, implements and outfits mentioned in the first sentence. "Such" is only meaningless if the tools, implements and outfit in the first sentence are something broader, or at least different, from the burglarious tools, implements and outfit in the second sentence.

Reading the first sentence as applying to all tools, implements or outfits and the second sentence as applying only to burglarious tools, implements and outfits relieves any tension between the two sentences. Burnette implied as much when it explained the basis for distinguishing between ordinary tools and burglarious tools. The Court stated:

[T]ools or implements may be, and usually are, designed and manufactured for lawful purposes. But it is unusual for a person, on a lawful mission, to have in his possession a combination of tools and implements suitable and appropriate to accomplish the destruction of any ordinary hindrance of access to any building, or to a vault or safe. All the statute does is to create a presumption of a criminal intent from proof of possession of burglarious tools or implements.

Id. at 790, 75 S.E.2d at 486 (emphasis added). Viewing burglarious tools as a subset of the larger categories of tools in the...