Grimes v. Commonwealth

• Decision Date: 29 October 2013
• Docket Number: Record No. 0293–13–1.
• Parties: Levin GRIMES v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

62 Va.App. 470

749 S.E.2d 218

Levin GRIMES

v.COMMONWEALTH of Virginia.

Record No. 0293–13–1.

Court of Appeals of Virginia.

Oct. 29, 2013.

Charles E. Haden for appellant.

Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: CLEMENTS, C.J., and ALSTON and McCULLOUGH, Judges.

McCULLOUGH, Judge.

We address two issues in this appeal: whether the Commonwealth established that the copper pipes stolen by Levin Grimes, appellant in this case, had a value of $200 or more and whether the defendant is guilty of burglary when he broke and entered into a walled-in crawl space that is integrated into the walls of the dwelling house itself. We conclude that the Commonwealth's evidence does not establish the value of the copper pipe, and we reverse appellant's convictions for grand larceny, conspiracy to commit grand larceny, larceny with the intent to sell or distribute property with a value of $200 or more, and conspiracy to commit larceny with the intent to sell or distribute property with a value of $200 or more. We affirm, however, his conviction for statutory burglary.

BACKGROUND

The house located at 6207 Roanoke Avenue in the City of Newport News had been unoccupied since the death of its resident. On the afternoon of June 18, 2012, two neighbors, Geraldine Sykes and Joan Taylor, walked over to the house to “look it over.” Taylor was interested in purchasing the property as an investment. They walked around to the back of the house. While there, they heard a “clanging” noise coming from under the house. When they heard the noise again, they concluded that someone must be under the house. Taylor went to call the police. The door leading to the crawl space was “ajar just a little bit.”

A man came out from the crawl space. He began to place items in the back of a truck. Appellant also emerged from the crawl space. He was carrying copper pipe under his arm. He told Sykes, “ma'am, the lady said I could have this pipe.” Appellant then proceeded to walk away from the house at a fast pace down the street, dropping items of pipe along the way.

A police officer soon arrived. The officer observed one man placing a black garbage bag that had several pipes protruding from the back into a truck. He also observed a second man, later identified as appellant, walking away. This individual was carrying copper pipe. The officer could observe several pieces of copper pipe fall to the ground. The officer summoned appellant, but he continued to walk away.

Another officer stopped appellant. Appellant was covered in wet mud and sand. At the time, he was still carrying an armful of copper pipe. When the police searched appellant, he had three cutting or grabbing tools on his person, along with a flashlight.

There were copper pipes scattered throughout the backyard of 6207 Roanoke Avenue and additional pipes near the crawl space. The door to the crawl space was open. The lock on that door had been cut. Police noticed additional pieces of copper pipe on the street. Still more detached pipes were found inside the crawl space. In all, police recovered 106 pounds of copper pipes. Police impounded and searched the truck that was parked next to the house. Inside they found wire cutting instruments, pipe cutting tools, and pliers.

Appellant stated that he had found the pipes in a dumpster nearby. He could not, however, say where this dumpster was located. Police searched the area and could not find any dumpsters. Appellant also denied that he was ever at the property on Roanoke Avenue.

At trial, the Commonwealth sought to elicit expert testimony from Detective Brad Rodgers to establish the value of scrap metal. The court held that Rodgers was not an expert and struck his testimony concerning the value of the copper pipe as scrap metal. The Commonwealth also presented testimony from Alethea Anthony, a bank employee who served as the executor of the estate that included the home on Roanoke Avenue. Anthony stated that the bank paid $4,700 to repair and replace the pipes. James Austin, of Austin Family Repairs, testified that he repaired the damaged pipes. He explained that the hot and cold pipes were made of copper. He testified that due to the age of the house, the drainage pipes were made of brass. He explained that brass is no longer in use. Austin paid approximately $950 for the copper pipes he installed in the home.

Appellant was charged with grand larceny, conspiracy to commit grand larceny, larceny with the intent to sell or distribute property with a value of $200 or more, conspiracy to commit larceny with the intent to sell or distribute property with a value of $200 or more, felony destruction of property, statutory burglary, and possession of burglary tools.¹

At the close of the evidence, counsel moved to strike the evidence, arguing that the Commonwealth did not establish the actual value of the pipes. With regard to the burglary, counsel argued that appellant did not go into the house proper, that he had, instead, gone underneath the house. The trial court overruled the objections and convicted appellant on all charges. He was later sentenced to serve a total of 47 years in prison, with 40 years suspended.ANALYSIS

When analyzing a challenge to the sufficiency of the evidence, [an appellate court] reviews the evidence in the light most favorable to the prevailing party at trial and considers any reasonable inferences from the facts proved. The judgment of the trial court will only be reversed upon a showing that it “is plainly wrong or without evidence to support it.”

Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330 (2006) (quoting Code § 8.01–680) (citation omitted).²

I. Value of the stolen copper pipes

Appellant contends that the Commonwealth failed to establish a value of $200 or more for the stolen pipe. Each of the following charges required the Commonwealth to prove a value of $200 or more: grand larceny, Code § 18.2–95, conspiracy to commit grand larceny, Code § 18.2–23, larceny of property belonging to another with a value of $200 or more with the intent to sell or distribute such property, Code § 18.2–108.01, and conspiracy to commit larceny with the intent to sell or distribute, Code § 18.2–23. “This statutorily specified amount is an essential element of the offense, and the burden is upon the Commonwealth to establish that element by proof beyond a reasonable doubt.” Robinson v. Commonwealth, 258 Va. 3, 5, 516 S.E.2d 475, 476 (1999) (discussing grand larceny).

The value of an item is determined by its

market value, and particularly retail value. “Fair market value is the price property will bring when offered for sale by a seller who desires but is not obliged to sell and bought by a buyer under no necessity of purchasing.” And the original purchase price of an item is admissible as evidence of its current value.

Id. at 5–6, 516 S.E.2d at 476 (quoting Bd. of Supervisors v. Donatelli & Klein, Inc., 228 Va. 620, 628, 325 S.E.2d 342, 345 (1985)). It is the “current value” of the stolen items that must be established. Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981) (per curiam). This current value is “measured as of the time of the theft.” Parker v. Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997). Where an item has no market value, the Commonwealth must prove “actual value.” Baylor v. Commonwealth, 55 Va.App. 82, 88, 683 S.E.2d 843, 845 (2009).

Here, the Commonwealth presented no evidence of the market value of the stolen copper pipes. The Commonwealth attempted to present testimony concerning the scrap value of the pipes, but that testimony was excluded. Therefore, there is no evidence concerning actual value.

Although the Commonwealth did not present testimony concerning the market or actual value of the copper pipe, it did present testimony with regard to replacement cost.³ In some situations, “replacement value can properly be considered in establishing actual value.” Little v. Commonwealth, 59 Va.App. 725, 733, 722 S.E.2d 317, 320 (2012). Replacement value does not operate as a substitute for market value. Rather, replacement value can, in certain circumstances, afford the fact finder a basis from which to draw inferences about the market value of the stolen item. See id. at 733, 722 S.E.2d at 321. In Little, for example, we concluded that replacement value was relevant to establish the value of stolen “demo” phones because the fact finder sensibly could infer that these phones were current models in good working condition. Id. Replacement value in the present context is more problematic. There was no testimony concerning the age or condition of the stolen copper pipes. The photographs of the pipes that were introduced at trial indicate that the pipes were well worn. Therefore, it is impossible to conclude, as we did in Little, that replacement value afforded the fact finder an appropriate basis from which to make a commonsense judgment about the actual value of the old stolen pipes.

The Commonwealth also notes that certain items, like jewelry, tend to hold their value over time. See Lester v. Commonwealth, 30 Va.App. 495, 505, 518 S.E.2d 318, 322–23 (1999). We have held, for example, that evidence of the original purchase price of jewelry that is in good condition is relevant to establish its current value, provided that only a reasonable amount of time has passed since the jewelry's purchase. Id. at 505–06, 518 S.E.2d at 323.Copper pipes are not analogous to jewelry, which generally is cherished and protected from damage. Although copper pipes are durable, they can be worn out and damaged over time.⁴

With no evidence in the record concerning the age of the pipes or their condition, we conclude that the Commonwealth failed to establish that the stolen copper pipes had a market or actual value of $200 or more.⁵

[W]here, as here, there is an absence of evidence linking replacement value to an accurate...