Velez-Suarez v. Commonwealth

• Decision Date: 27 January 2015
• Docket Number: Record No. 1269–13–4.
• Citation: 64 Va.App. 269,767 S.E.2d 715
• Court: Virginia Court of Appeals
• Parties: Freddy VELEZ–SUAREZ v. COMMONWEALTH of Virginia.

64 Va.App. 269

767 S.E.2d 715

Freddy VELEZ–SUAREZ

v.COMMONWEALTH of Virginia.

Record No. 1269–13–4.

Court of Appeals of Virginia, Alexandria.

Jan. 27, 2015.

Bonnie H. Hoffman, Deputy Public Defender (Office of the Public Defender, on briefs), for appellant.

Susan Mozley Harris, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: KELSEY and ALSTON, JJ., and BUMGARDNER, S.J.

Opinion

ALSTON, Judge.

Freddy Velez–Suarez (appellant) appeals his convictions of conspiracy to commit grand larceny in violation of Code §§ 18.2–23 and –95 and destruction of property in violation of Code § 18.2–137. On appeal, appellant argues that the trial court erred “in convicting [appellant] of conspiracy to commit grand larceny as the evidence was insufficient to establish [appellant] and Mr. Amaya had an agreement to engage in a pre-concerted criminal act” and “in convicting [appellant] of destruction of property as the evidence was insufficient ... under a principle in the second degree or accomplice/co-conspirator theory to establish [appellant's] guilt for the cutting of the sensor tags found in Mr. Amaya's dressing

room stall.” We disagree and therefore affirm appellant's convictions.

I. Background

On January 20, 2012, appellant was arrested for shoplifting and conspiracy to commit larceny along with his co-conspirator, Edgar Amaya–Cuellar, at Dulles Town Center Mall in Sterling, Virginia, outside of a Lord & Taylor department store. On April 9, 2012, appellant was indicted on charges of felony possession of burglarious tools with the intent to commit larceny in violation of Code § 18.2–94 ; felony conspiracy to commit larceny in violation of Code §§ 18.2–23¹ and –95; petit larceny, second offense, in violation of Code §§ 18.2–96 and –104; destruction of property valued less than $1,000 in violation of Code § 18.2–137 ; and preventing a law enforcement officer from lawfully arresting him in violation of Code § 18.2–479.1.

As this is a sufficiency of the evidence case, we review the facts before the trial court in their entirety in order to determine whether those facts supported appellant's convictions. At appellant's bench trial on July 27, 2012, Nicole Bramlett, a Lord & Taylor loss prevention officer testified for the Commonwealth. Ms. Bramlett testified that she first noticed appellant and Mr. Amaya–Cuellar because they were carrying shopping bags that did not belong to any of the stores at that mall and she began to follow them on camera.² She saw both men select merchandise, and then witnessed Mr. Amaya–Cuellar enter the fitting room first and appellant enter a bit later. The men were not in the fitting room for longer than five minutes. Mr. Amaya–Cuellar exited first, and appellant followed a bit later. After Mr. Amaya–Cuellar exited the fitting room and then the store, he sat outside the store on a bench, and loss prevention officers approached him. After a physical confrontation with Mr. Amaya–Cuellar, including officers having to physically detain him until law enforcement officers arrived, loss prevention officers recovered property belonging to Lord & Taylor from him that was worth over $200.

Meanwhile, when appellant exited the fitting room, he continued to look at more clothing in the store. After looking around for a few more minutes, and while the officers “wrestled around with [Mr. Amaya–Cuellar] outside the store,” as appellant exited the store and tried to walk around Ms. Bramlett, she witnessed appellant carrying a shopping bag with a black coat inside she had previously seen appellant handle while in the store. Ms. Bramlett then approached appellant and told him that he had stolen merchandise and asked him to come back to the office with her. Appellant said he needed to use the bathroom and that Ms. Bramlett did not have the right to stop him. Ms. Bramlett testified that she told appellant that he could not go to the bathroom but appellant went inside the bathroom of Lord & Taylor anyway. Loss prevention officers later recovered the black coat outside of the store without a security sensor on it. Ms. Bramlett testified that she could not recall if the specific black coat had a security sensor on it prior to the theft, but that usually those coats would have a security sensor on them. The black jacket retails for $119.99.

The evidence also revealed that while Ms. Bramlett monitored Mr. Amaya–Cuellar and appellant on surveillance camera until they exited the store with merchandise, her coworker Justin Wade, another loss prevention officer at Lord & Taylor, followed the men around the store and into the fitting room. Mr. Wade also testified for the Commonwealth and stated that he observed (and the video showed) appellant entering the fitting room area with some items he selected, including a shiny black coat. Mr. Wade entered the fitting room area while Mr. Amaya–Cuellar and appellant were in individual stalls with their merchandise. He heard Mr. Amaya–Cuellar and appellant talking in Spanish and could not understand what they were saying. After Mr. Amaya–Cuellar exited the fitting room with no merchandise, Mr. Wade entered the stall Mr. Amaya–Cuellar had occupied and identified three missing items he previously saw Mr. Amaya–Cuellar holding. Appellant remained in his fitting room stall while Mr. Wade examined the contents of Mr. Amaya–Cuellar's fitting room stall. Appellant later exited the fitting room area with a few items and returned some of them to displays in the store; however, Mr. Wade did not see him return the black coat in question.

Once Mr. Amaya–Cuellar exited the store and went to sit on a bench in the mall, Mr. Wade testified that he approached him and Mr. Amaya–Cuellar became confrontational and refused to go back into the store with him. At some point while Mr. Wade, Ms. Bramlett, and mall security were dealing with Mr. Amaya–Cuellar, appellant exited the store with shopping bags. Mr. Wade stated that, once he exited the store and saw what was going on between Mr. Amaya–Cuellar and law enforcement, appellant became verbally combative but not threatening towards loss prevention and mall security officers. At some point, Mr. Wade witnessed appellant go back inside Lord & Taylor and a few minutes later, exit again.

When Mr. Wade examined the fitting rooms Mr. Amaya–Cuellar and appellant occupied, he found security devices in Mr. Amaya–Cuellar's fitting room but not in appellant's. Mr. Wade testified that there are various ways to remove security devices, including ripping a hole in the merchandise. Some of the merchandise Mr. Amaya–Cuellar selected had holes in it. The black coat appellant removed from the store was recovered about ten minutes after the entire incident took place. There was no testimony that the jacket had a hole in it.

Finally, Detective Patrick Beaver of the Loudoun County Sheriff's Office testified for the Commonwealth. Detective Beaver was a deputy specializing in the mall theft unit at the time of the appellant's shoplifting incident. Before appellant and Mr. Amaya–Cuellar entered Lord & Taylor, Detective Beaver noticed both of them walking through the mall because they had bags from stores not located in Dulles Town Center. Detective Beaver made visual contact with appellant and Mr. Amaya–Cuellar in the food court and observed appellant with a belt with what looked like AK–47 rounds on it. Sometime after seeing appellant and Mr. Amaya–Cuellar in the food court, Detective Beaver was called to Lord & Taylor for a report of disorderly conduct. When he arrived outside of Lord & Taylor in the mall, Mr. Amaya–Cuellar was in handcuffs with loss prevention and appellant was yelling at Dulles Town Center security guards. Detective Beaver testified that loss prevention team members told him that both appellant and Mr. Amaya–Cuellar were involved in a larceny from Lord & Taylor. Detective Beaver then ordered appellant to sit down on a bench and remove his hands from his pockets. Appellant sat down but refused to take his hands out of his pockets. Detective Beaver then put appellant in handcuffs and moved him inside Lord & Taylor to the loss prevention office. He then viewed the video of appellant and Mr. Amaya–Cuellar inside Lord & Taylor and described them as “engaged and acting together as they were sorting—or picking up items throughout the store and with them going into the dressing

room.” As a result of viewing the video combined with what loss prevention reported, Detective Beaver placed appellant and Mr. Amaya–Cuellar under arrest and searched both men incident to arrest. He found a wire-cutting device in appellant's front pocket and a pocketknife, two wire-cutters, and stolen items on Mr. Amaya–Cuellar. Detective Beaver testified that he later recovered the black jacket appellant removed from the store, but did not specify where or from whom he recovered it.

At the conclusion of the Commonwealth's evidence, the trial court granted appellant's motion to strike the charge of resisting arrest, but denied the motion as to the remaining counts. Mr. Amaya–Cuellar then testified for appellant. According to Mr. Amaya–Cuellar, he met up with appellant at a bus stop on the day in question and, by coincidence, both were heading to Dulles Town Center. Mr. Amaya–Cuellar took some items to try on into the fitting room and was followed by a loss prevention officer who was “very rude” and continued to follow him around. Mr. Amaya–Cuellar testified that he did not have any conversations with appellant about why he was shopping that day and that he did not see appellant steal anything or remove any security devices. For his part in the incident, Mr. Amaya–Cuellar pled guilty to three charges of grand larceny, possession of burglarious tools, and assault and battery.

After additional evidence and argument, the trial court found appellant guilty of the remaining charges of possession of burglarious tools, conspiracy to commit grand larceny, petit larceny (2nd...