Knight v. Com., 820328

• Decision Date: 11 March 1983
• Docket Number: No. 820328,820328
• Citation: 225 Va. 85,300 S.E.2d 600
• Parties: Jack Wayne KNIGHT v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 600

300 S.E.2d 600

225 Va. 85

Jack Wayne KNIGHT v. COMMONWEALTH of Virginia.

Record No. 820328.

Supreme Court of Virginia.

March 11, 1983.

William E. Bobbitt, Jr., Staunton, for appellant.

Thomas D. Bagwell, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Linwood T. Wells, Jr., Asst. Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, ^* STEPHENSON and RUSSELL, JJ.

POFF, Justice.

Convicted in a bench trial, Jack Wayne Knight was sentenced to confinement in the penitentiary for 12 years with 10 suspended for statutory burglary, Code § 18.2-91, two years for grand larceny, § 18.2-95, and two years for arson, § 18.2-82. Defendant assigns error to the larceny and arson convictions.

The situs of the crimes was Showker's Department Store. The store was located on the first floor of a building containing two apartments on the second floor. Blanche Showker, the owner, locked the store at 9:35 p.m. on March 13, 1981. At 10:25 p.m., she received a telephone call advising her that the store was afire. The fire was extinguished before it reached the apartments, and some of the merchandise suffered only smoke damage.

The Commonwealth proved by eyewitness testimony that defendant and Preston Knight broke the lock on the door, entered the store, and stole a number of items. Larry Sprouse, who saw the burglars enter, testified that when they came out, Preston was carrying "a light blue jean coat". Later, Sprouse learned that defendant had taken "one or two" Mickey Mouse watches and Preston "a couple". This testimony was never contradicted, and defendant raised no challenge to the burglary conviction at trial or on appeal. Attacking his conviction of grand larceny, defendant contends that the Commonwealth failed "to establish that the value of the items taken was in excess of $200" as required under the amendment to § 18.2-95, Acts 1980, c. 175.

David Showker, Jr., who described himself as a farmer, had assisted his sister Blanche in the operation of her store for more than 30 years. After the blaze was extinguished, Showker inspected the premises. He found that "a group of jackets" which he had examined earlier that day had escaped the fire, and he "noticed a few of those were missing." He also found "several watches missing out of the case." He estimated the price range of the jackets at $20.00 to "[m]aybe $45.00" and the watches at "$19.00 to about $35.00 or $40.00." Asked if he had "made an effort to approximate a value of these watches and jackets," Showker said, "I would say, just guessing, that was missing, was probably around $300.00 worth, or more."

The value of the goods specified in the grand larceny statute is an essential element of the crime, and the Commonwealth bears the burden of proving that element beyond a reasonable doubt.

Proof that an article has some value is sufficient to warrant a conviction of petit larceny, but where the value of the thing stolen determines the grade of the offense, the value must be alleged and the Commonwealth must prove the value to be the statutory amount.

Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954).

Defendant concedes sufficiency of the proof of petit larceny. But he argues, and we agree, that the evidence was insufficient to support the conviction of grand larceny. It is impossible to determine from the evidence the Commonwealth produced at trial how many of which items were stolen, the value of any individual item, or the cumulative value of all. At best, Showker's estimate was a random guess. As we said in Dunn v. Commonwealth, 222 Va. 704, 705-06, 284 S.E.2d 792, 793 (1981), "the verdict could have been based only upon speculation and conjecture and cannot be permitted to stand."

Defendant was convicted of a violation of Code § 18.2-82 which provides:

If any person while in any building or other structure unlawfully, with intent to commit a felony therein, shall burn or cause to be burned, in whole or in part, such building or other structure, the burning of which is not punishable under any other section of this chapter, he shall be guilty of a Class 4 felony.

On appeal, defendant relies upon the presumption that a fire was caused by accident and invokes the rule that "the Commonwealth ha[s] the burden of proving that the fire ... was of incendiary origin and that the defendant was the guilty agent in the burning." Simmons v. Commonwealth, 208 Va. 778, 782, 160 S.E.2d 569, 573 (1968).

But this presumption is rebuttable. Whether the origin of a fire was accidental or incendiary is a question of fact, and resolution of that question may, and often must, turn upon the weight of circumstantial evidence. Virginia State Police Arson Investigator D.D. Kelley testified that, because the damage was only partial, it was easy to determine, as he did, that the fire started at a point on the floor beneath a rack of dresses. The dresses were inherently flammable, there were no volatile liquids nearby, and tests conducted by the forensic laboratory verified Kelley's opinion that no accelerants were involved. Although there were "no electrical boxes or wiring in that vicinity" and "the current had been on when the fire department...